Final Meal:
A cheeseburger, french fries, apple pie and Pepsi.

Final Words:
Written statement: "Jesus Christ was put to death on the false testimony of those who received money in exchange for the lies they told. Just the same, the state of Ohio has succeeded in its quest for my life by way of perjured testimony and false witnesses who were paid to tell the lies they did. However, there has never been any hate nor desire of revenge in my heart for them, for I know God will repay those for each and every one of their sins that have gone forgotten."

In the death chamber, Martin spoke about three minutes in what prison officials said was the longest final statement by a condemned inmate since Ohio resumed executions in 1999. The statements were not recorded. Here are some excerpts as transcribed by prison officials: "I know that God is in control and those who are here are not responsible. Just as Jesus Christ was lied on and slandered, so I have been treated the same way. I have no hatred. I know God is in control and I pray that he will forgive us of our sins, forgive the media people watching of their sins and all that they have done. As the Bible says, let those without sin cast the first stone. God forgave us all. To my family, I love you all. I know I did not live a good life. Thank God for allowing my sister and nephew to be here and brother Morgan for his support. Hug Momma for me. Take care family. Take care media. God bless you all."

Internet Sources:

Ohio Department of Rehabilitation and Correction (Death Row)

Inmate #: 174878

Inmate: Martin, Ernest

DOB: 09/22/60

Conviction(s): ASSAULT, RSP, CARRY CONCEALED WEAPON, AGG ROBBERY, AGG MURDER

County of Conviction: Cuyahoga

Date of Murder: 01/20/83

Received at DOC: 08/03/83- Southern Ohio Correctional Facility in Lucasville, Ohio.

ProDeathPenalty.Com

On January 21, 1983, Ernest Martin shot to death, Robert Robinson, owner of Robinson's Drug Store in Cleveland, and stealing less than $40. Robert had let Martin's girlfriend in the store to buy some cold medicine, and Martin shot him through the glass door. Martin used a gun he had stolen from a security guard.

Josephine Pedro testified that in the early hours of January 21, 1983, Martin revealed a plan to rob Robinson's Drug Store. She attempted to dissuade him but said Martin threatened her if she did not cooperate in the robbery. Martin then left the apartment and returned approximately ten minutes later with the gun he had stolen from a security guard. Martin told his girlfriend she was to go to the store and attempt to buy medicine for a cold. When Robert Robinson, owner of the store, unlocked the door to allow her entrance, Martin planned to follow her in and rob the premises. Martin wore gray pants, tennis shoes and a waist-length black leather jacket. He covered his face with a brown knit cap in which he cut holes for his eyes to avoid identification.

At approximately 12:45 a.m., Pedro arrived at the store and knocked on the door. Upon recognizing her, Robert Robinson unlocked the door to let her in. However, he locked the door again before Martin had a chance to gain entrance. As Robert stood in front of the door after locking it, two shots were fired through the door, fatally wounding him. After firing the shots Martin allegedly went to the apartment to change his clothes and then returned to the store to finish the robbery.

An employee at the drugstore was in the back room at the time of the shooting. After hearing the shots and seeing what had occurred, he called an ambulance and the police. He then instructed Pedro to go to Robinson's house to get his wife. Pedro complied and upon returning was interviewed by the police concerning the events. She gave them her name and address and stated she knew nothing about the shooting. Martin was also present at this time and talked to the police. Upon completing her interview, Pedro returned to her apartment. Martin returned approximately thirty-five minutes later. Pedro asked Martin whether the evening's events had been worth it. He showed her a pile of bills under a blanket which he then took into the bathroom and explained that he had stolen between $38 and $39 from the store.

Several days after the shooting the police again questioned Pedro and Martin. By this time the two had put together a story for the police that Pedro had gone to the store to get cough medicine when the deceased was shot and that Martin only came to the store after she had been gone for an unusually long time. On January 29, 1983, the police returned and arrested Pedro and Martin for the murder of Robinson. After several days in jail, Pedro told the police that she had helped set up the robbery by going to the store and that Martin had shot Robert Robinson.

Soon afterwards, Martin's father contacted Pedro asking her to change her statement. While visiting Martin in jail, Martin's father again asked Pedro to change her story. During the trial, the state introduced a letter dated February 13, 1983, wherein Martin asked Pedro to "tell the truth" and implicate a man named "Slim" for the murder-robbery of Robinson. An additional letter dated February 17, 1983, in which Martin again asked her to implicate "Slim," was also introduced into evidence. Pedro has continually denied that "Slim" had anything to do with these crimes. The state also offered another letter into evidence which had been written by Martin to Pedro when he was in jail in February 1981 for another offense. Pedro identified the letter and read it into the record. The letter asked Pedro to lie for Martin and to implicate someone else for the commission of the offense for which Martin was charged. Pedro admitted lying for Martin pursuant to the letter in the previous trial for the other offense. Finally, another woman testified that she lived with Pedro for about five or six months until the middle of December 1982. During December she heard Martin say he was going to rob Robinson's store. Martin threatened her with a gun, warning her that she had better not tell anyone of his plan.

NBC4Columbus.Com

Final Statement Of Executed Inmate Ernest Martin

LUCASVILLE, Ohio (AP June 18, 2003) -- The written statement of Ernest Martin, a convicted killer who was executed Wednesday at the Southern Ohio Correctional Facility:

"Jesus Christ was put to death on the false testimony of those who received money in exchange for the lies they told. Just the same, the state of Ohio has succeeded in its quest for my life by way of perjured testimony and false witnesses who were paid to tell the lies they did. However, there has never been any hate nor desire of revenge in my heart for them, for I know God will repay those for each and every one of their sins that have gone forgotten."

In the death chamber, Martin spoke about three minutes in what prison officials said was the longest final statement by a condemned inmate since Ohio resumed executions in 1999. The statements were not recorded. Here are some excerpts as transcribed by prison officials:

"I know that God is in control and those who are here are not responsible. Just as Jesus Christ was lied on and slandered, so I have been treated the same way. I have no hatred. I know God is in control and I pray that he will forgive us of our sins, forgive the media people watching of their sins and all that they have done. As the Bible says, let those without sin cast the first stone. God forgave us all. "To my family, I love you all. I know I did not live a good life. Thank God for allowing my sister and nephew to be here and brother Morgan for his support. Hug Momma for me. Take care family. Take care media. God bless you all."

Martin's family did not release a final statement. The widow of the murder victim, Robert Robinson, did not witness the execution.

Ohio News Network

"State Executes Ernest Martin," by Tom Chansky. (June 18, 2003)

Lucasville - A man convicted of killing a Cleveland drug store owner in 1983 was executed Wednesday morning. Ernest Martin was pronounced dead at 10:11 a.m. Wednesday at the Southern Ohio Correctional Facility in Lucasville. Martin was convicted of killing Cleveland drug store owner Robert Robinson during a robbery in 1983. Robinson was shot twice after he let Martin’s accomplice into the store. Martin made off with between $38 and $39 in the robbery.

Martin had claimed that another man committed the murder. However, he had dropped a claim of mental retardation and on Tuesday, the U.S. Supreme Court refused to stop the execution. In his last words, Martin compared himself to Jesus Christ, who was slandered before his execution.

Andrea Dean, Spokesperson for the Ohio Department of Execution, says there were no execution witnesses representing Robinson’s family. She says it's the first time that's happened since the state resumed executions in 1999.

Martin was the eighth person executed by the state since the death penalty was reinstated in 1999. Ohio last executed a death row inmate in April, when 44-year-old David Brewer was put to death for a 1985 murder.

Here are the inmates executed since 1999:
-Wilford Berry, February 1999 (Berry was Ohio’s first execution in 36 years.)
-Jay D. Scott, June 2001
-John Byrd, February 2002
-Alton Coleman, April 2002
-Robert Buell, September 2002
-Richard Fox, February 2003
-David Brewer, April 2003
-Ernest Martin, June 2003

Canton Repository

"Convicted Killer Moved to Prison Where Execution Scheduled." (AP Tuesday, June 17, 2003) LUCASVILLE, Ohio (AP) - A convicted killer was transferred Tuesday to the maximum-security prison where he is scheduled to be executed. Ernest Martin, 42, is to be executed by injection Wednesday for shooting store owner Robert Robinson to death during a robbery in Cleveland in 1983.

The U.S. Supreme Court, without comment, refused Tuesday to block Martin's execution. Martin had asked the court on June 6 for time to argue he received inadequate legal help during his trial. He says his trial lawyer should have asked a judge to suppress evidence because he was arrested without a warrant, said Tim Payne, an assistant public defender representing Martin. Martin previously said he was mentally retarded and should not be executed, under a U.S. Supreme Court ruling last year. However, Martin dropped that claim after a psychologist hired by his attorneys determined he was not mentally retarded. He was being held in a cell a few feet from the execution chamber at the Southern Ohio Correctional Facility, said Andrea Dean, spokeswoman for the state prison system.

Martin, who had been held at Mansfield Correctional Institution, requested a special meal of a cheeseburger, french fries, apple pie and Pepsi, Dean said. On Tuesday, Martin spoke on the phone with his mother, Frances Martin, 67, of Cleveland. In Lucasville, he visited with his son, Darnell Reese, and his daughter, Laketta Tate. He also visited with his sister, Debra Reese, brother, Curtis Martin, and Charles Morgan, a spiritual adviser. Morgan, his sister and brother planned to witness the execution. Martin would be the eighth inmate Ohio has executed since the state began carrying out the death penalty again in 1999.

Cleveland Plain Dealer

"Two Families Prepare For One Execution," by Lila J. Mills. (June 18, 2003)

Anna Robinson spotted the lined trench coat on display at the Higbee Co. department store downtown and knew she had to buy it for her husband of almost 40 years. Days later, Robinson saw her 70-year-old husband in the coat, but it wasn't how she imagined. Robert Robinson lay dead on the floor of his Fairhill Road convenience store, shot in the chest by bullets that smashed through the store's front door. Police used the coat to cover his bloody body. It was Jan. 21, 1983.

"I begged him to get bulletproof glass on that door," Anna Robinson, now 85, said recently, her voice rising and still filled with fury more than 20 years after the shooting. "My husband was good to everybody," she said. "He would give people food on credit. He was a good man. "A life for a life, that's what I say. Period."

Today the state is scheduled to take Ernest Martin's life by lethal injection as punishment for Robert Robinson's murder. Martin filed an appeal yesterday with the U.S. Supreme Court, asking to fire his lawyers and have the justices order Ohio to appoint him new ones. Yesterday, in a cell just steps away from the execution chamber, Martin requested a meal of a cheeseburger, fries and a Pepsi, prison spokeswoman Andrea Dean said. She described Martin as upbeat and still hopeful of a legal victory.

He was a 22-year-old roofer when police arrested him within days of the shooting. A jury convicted him of aggravated murder, aggravated robbery and carrying a concealed weapon that June and he was sentenced to die. More than 200 men have been sentenced to death since then. Martin will be the eighth man executed and the first of three Ohio executions scheduled in a 10-day span. Martin is now 42 years old and has spent the past 20 years on death row. Two of his children, now 22 and 24, were preschoolers the last time they saw him.

Martin has always maintained his innocence.

Investigators never found a gun nor any other physical evidence connecting Martin to the crime, the public defender's office said. But testimony from his girlfriend, Josephine Pedro, helped seal his fate. Martin and Pedro lived together on Frank Avenue, about a block from Robinson's Fairhill Cut-rate Foods. The store, now the site of an abandoned gas station, was at Cedar Avenue and Fairhill Road, which has since been renamed Stokes Boulevard. A woman who had lived with Martin and Pedro told investigators she heard them plan to rob Robinson. Pedro later told detectives she and Martin had planned the robbery, although not the shooting.

Pedro went to the store about 1 a.m. on Jan. 21 and persuaded Robinson to open the door, saying she had a cold and wanted to buy Nyquil. Robinson's policy was to lock the door at 6 p.m. and open it only for customers he knew. He let Pedro in, but then locked the door again. When Martin showed up, he was surprised to find the door locked, prosecutors said, and shot through the door twice, hitting Robinson in the chest. Prosecutors contended that Martin then ran home, changed clothes and came back to the store, feigning concern over what had happened. Before police arrived, he also stole about $99 from the cash register, prosecutors said.

Martin declined to be interviewed for this story.

His family members said they believe Martin's trial was unfair. They believe that Pedro, who was never charged with a crime, was coerced into testifying. And after a hearing with no jurors present, the trial judge barred testimony from the lone eyewitness, a man who lived near the store and looked out of his apartment window after hearing gunshots. That witness, now in jail himself, told Martin's defense team he saw another man running from the store after the shooting. "There are two different justices out there," Martin's brother Erwin, 41, said recently. "There really are. We didn't have any money so we didn't have any defense. Justice is not blind, she's peeking." After a five-day trial, jurors deliberated for three more days before announcing their verdict. Martin was sentenced to death a month later - not long after Ohio reinstated capital punishment.

The Robinsons had lived together in an apartment behind their store. That fall, Anna Robinson closed the store, unable to run it herself. With just $3,000 in the bank, she moved into subsidized housing nearby. She continues to live there today.

Also that year, Martin and his family started on a quest to keep him alive. Martin, who dropped out of John Hay High School in the 11th grade, improved his reading and devoured law books to assist his defense. He wrote a 235-page autobiography. His 67-year-old mother, Frances Martin, said she cashed out her life insurance policy to buy him books and a typewriter so he could try "to do for himself what his lawyers didn't." She keeps a trial transcript and other documents in a duffel bag at her house. Martin's sister Debra Reese has meticulously looked up the legalese in those documents and written the definitions of words she doesn't understand in the margins. "I don't really sleep no more," Frances Martin said recently. "He's on my mind all the time. I go to bed with him on my mind and I wake up with him on my mind."

Three months ago, the Martin family got his scheduled March 24 execution postponed so his lawyers could argue that he is mentally retarded and unfit for execution. Martin was in learning-disabled classes in school, sucked his thumb throughout elementary school and wet the bed until he was a teenager, his lawyers said in a clemency application. But a psychologist the defense hired for Martin found he wasn't retarded, and one of his lawyers dropped the claim on June 6.

On Friday, Gov. Bob Taft refused a last-ditch plea for clemency. Taft wrote: "There is no doubt that Mr. Martin is guilty of the murder of Robert Robinson, although he has persistently refused to take responsibility for his actions." Martin's public defender, Tim Payne, said that Martin's case is an example of how capital punishment is "freakishly and arbitrarily applied." "I don't think that this case is appropriate for capital punishment," Payne said. The killing, if Martin did it, "wasn't planned and it was at night through a glass door."

Since learning of Taft's decision, Martin's family has been preparing to make the trip to Lucasville to witness the execution. "I can't fathom going to see my brother die," said Martin's sister Debra, "but somebody has got to be there for him." Martin wrote to her recently and said, "If death is the only way I can be free then I'm not scared." Robinson's widow won't make the trip to Lucasville because of ill health.

On a recent chilly day, she looked around her tiny, drafty apartment - with towels stuffed under the doors and window to keep out the cold - and pondered the past 20 years. "I don't think he should live," she said quietly. "He shot [Robert] for no reason at all. If that hadn't happened, my husband would have been living yet and I never would have had to move here."

TheDeathHouse.Com

"Ohio Executes Man Who Killed Pharmacy Owner in Robbery," by Robert Anthony Phillips. (June 18, 2003)

LUCASVILLE, Ohio -- Convicted killer Ernest Martin was executed by lethal injection at the state prison this morning for the 1983 murder of a Cleveland pharmacy owner during a robbery. Martin, 42, became the eighth condemned murderer put to death in Ohio since the state resumed executions in 1999. Two more convicted killers are scheduled for execution in June. Martin, whose last ditch appeal was rejected by the U.S. Supreme Court, was led into the Ohio death house at the Southern Ohio Correctional Facility shortly after 10 p.m.

Martin used his final written and verbal statements to claim that like Jesus Christ, he had been slandered and sentenced to death because of false and perjured testimony. "Just as Jesus Christ was lied on and slandered so I have been treated the same way," he said from the Death House before he was executed. "I have no hatred. I know God is in control and I pray he will forgive you for your sins..." Martin said he knew he did not "live a good life," but thanked God for His forgiveness and for allowing his sister, nephew and brother to support him. "Hug mama for me," Martin told one of his relatives. JoEllen Culp, a spokeswoman for the Ohio Department of Rehabilitation and Correction, said the lethal chemicals began to flow shortly after 10 a.m. and Martin was pronounced dead at 10:11 a.m. A jury found Martin guilty of the murder of Robert Robinson on Jan. 21, 1983. Martin stole less than $40 during the robbery.

Girlfriend a Decoy

Prosecutors contend that Martin hatched a plan to send his girlfriend, Josephine Pedro, into the store just after closing -time to buy cold medicine. When Robinson unlocked the door to let her in, Martin shot Robinson through a window. Robinson had locked the door after allowing Pedro inside the store, and there was not time enough for Martin to slip through behind his girlfriend, prosecutors said. Pedro and Martin were initially charged with the murder. However, Pedro later fingered Martin as the killer. Martin maintained that his former girlfriend and others who claim to have heard him talk about the robbery are lying.

During his final appeals, Martin's lawyers had claimed the condemned man was mentally retarded and he was given inadequate legal counsel during his trial. Martin was orginally scheduled for execution in March, but the Ohio Supreme Court postponed the death date based on claims by defense lawyers that Martin was mentally retarded. However, after a psychologist reported that Martin was not mentally retarded, lawyers for Martin dropped those claims. The U.S. Supreme Court last year barred the execution of mentally retarded murderers who were sentenced to death.

The Ohio Attorney General's office countered that Martin had penned an autobiography while imprisoned, maintained a "B" average in high school and researched and filed some of his own legal motions while on Death Row. Timothy Payne, an attorney with the Ohio Public Defender's office, also charged that Martin was the victim of dispproportional punishment. He noted that Josephine Pedro was not charged in connection with the robbery. Martin was denied clemency by Gov. Bob Taft. The U.S. Supreme Court has rejected Martin's last appeal.

Ohio Death Row

ERNEST MARTIN

On December 20, 1982, Ernel Foster, a security guard, was robbed of his .38 caliber Smith & Wesson revolver, Model 10, Serial No. D431784, by a black male, while waiting at a bus stop on East 93rd Street and Kinsman Avenue. Foster testified that he chased the offender for a block and a half and was able to see his face. He further noted that the offender's hair was in small braids. On February 1, 1983, Foster was summoned to the police station to view a line-up composed of six black males. Foster was able to identify the defendant-appellant, Ernest Martin, noting that his hair was braided in the same manner as it appeared on December 20, 1982. Later, Foster identified appellant in the courtroom as the man who had taken his weapon.

Appellant's girlfriend, Josephine Pedro, testified that he had threatened her with a gun earlier that year, telling her that he had stolen the weapon from a security guard at East 93rd and Kinsman. Pedro wrote down the serial number of the gun on the back of an envelope box. The number was identical to the serial number of Foster's weapon except that the letter "D" had been purposely transformed into a 119." Pedro testified that this was done to make the number sequence look like a telephone number in order to ward off any suspicion.

Pedro further testified that in the early hours of January 21, 1983, appellant revealed a plan to rob Robinson's Drug Store. She attempted to dissuade him but the appellant threatened her if she did not cooperate in the robbery. Appellant then left the apartment and returned approximately ten minutes later with the gun he had taken from Foster.

Appellant devised a plan whereby Pedro was to go to the store and attempt to buy medicine for a cold. When Robert Robinson, owner of the store, unlocked the door to allow Pedro's entrance, appellant planned to follow her in and rob the premises. The appellant wore gray pants, tennis shoes and a waist length black leather jacket. He covered his face with a brown knit cap in which he cut holes for his eyes to avoid identification. At approximately 12:45 a.m., Pedro arrived at the store and knocked on the door. Upon recognizing Pedro, Robinson unlocked the door to let her in. However, he locked the door again before the appellant had a chance to gain entrance. As Robinson stood in front of the door after locking it, two shots were fired through the door fatally wounding him. After firing the shots the appellant allegedly went to the apartment to change his clothes and then returned to the store to finish the robbery.

Monty Parkey, an employee of Robinson, was in the back room at the time of the shooting. After hearing the shots and seeing what had occurred, Parkey called an ambulance and the police. He then instructed Pedro to go to Robinson's house to get Mrs. Robinson. Pedro complied and upon returning was interviewed by the police concerning the events. She gave them her name and address and stated she knew nothing about the shooting. The appellant was also present at this time and talked to the police. Upon completing her interview, Pedro returned to her apartment.

When Pedro reached the apartment she called her neighbor, Larry Kidd. Appellant returned approximately thirty-five minutes later. Pedro asked appellant whether the evening's events had been worth it. He showed her a pile of bills under a blanket which he then took into the bathroom and explained that he had stolen between $38 and $39 from the store.

Appellant then drove Kidd and Pedro to an "after hours" spot for drinks. After they sat down at the table, appellant took two spent cartridges from his pocket and placed them on the table. Kidd remarked: "* * * [M]ust be a night of the duces [sic], you got a duce [sic] and a quarter, and Mr. Robinson got shot twice, and you got two cartridges." Appellant did not respond to this comment.

Several days after the shooting the police again questioned Pedro and appellant. By this time the two had put together a story for the police that Pedro had gone to the store to get cough medicine when the deceased was shot and that appellant only came to the store after she had been gone for an unusually long time. On January 29, 1983, the police returned and arrested Pedro and appellant for the murder of Robinson. After several days in jail, Pedro told the police that she had helped set up the robbery by going to the store and that the appellant had shot the deceased.

Soon afterwards, appellant's father contacted Pedro asking her to change her statement. While visiting appellant in jail, appellant's father again asked Pedro to change her story. During the trial, the state introduced a letter dated February 13, 1983, wherein appellant asked Pedro to "tell the truth" and implicate a man named "Slim" for the murder-robbery of Robinson. An additional letter dated February 17, 1983, in which appellant again asked her to implicate "Slim," was also introduced into evidence. Pedro has continually denied that "Slim" had anything to do with these crimes.

The state also offered another letter into evidence which had been written by the appellant to Pedro when he was in jail in February 1981 for another offense. Pedro identified the letter and read it into the record. The letter asked Pedro to lie for appellant and to implicate someone else for the commission of the offense for which the appellant was charged. Pedro admitted lying for the appellant pursuant to the letter in the previous trial for the other offense.

Finally, Antoinette Henderson testified that she lived with Pedro for about five or six months until the middle of December 1982. During December she heard the appellant say he was going to rob Robinson's store. Appellant threatened her with a gun, warning her that she had better not tell anyone of his plan.

During the trial the defense presented no witnesses, but sought to introduce into evidence written statements of Pedro and Henderson. The court denied this request finding the written statements were not inconsistent as alleged by the defense.

The jury found the appellant guilty of the aggravated robbery of Ernel Foster and of the aggravated robbery and aggravated murder of Robert Robinson with the specification of being the principal offender of the aggravated murder while committing or attempting to commit aggravated robbery. After the mitigation hearing was conducted, the jury recommended that appellant receive the death penalty. On July 8, 1983, the trial court sentenced appellant to death. On July 13, 1983, appellant filed a motion for a new trial. On May 9, 1984, the motion was denied. On May 23, 1984, the court filed its required judgment entry and separate opinion, pursuant to R.C. 2929.03(F), finding that the aggravating circumstances outweighed the mitigating factors. The following day, the trial court filed its opinion on the motion for a new trial.

On August 5, 1983, appellant appealed his conviction to the court of appeals. The court of appeals affirmed the sentence of the trial court and issued a separate opinion as required by R.C. 2929.05(A) on September 27, 1984.

Prison Activist / National Coalition to Abolish the Death Penalty

TAKE ACTION NOW !

ERNEST MARTIN - Scheduled Execution Date: March 26, 2003 10:00 AM EST Ohio

NCADP - Execution Alert - The state of Ohio is scheduled to execute Ernest Martin, a black man, March 26 for the 1983 murder of Robert Robinson in Cleveland. Martin allegedly shot him through the glass door of Robinson's drug store, which the victim owned. Over the past two decades, Martin has maintained his innocence, and repeatedly claimed that his ex-girlfriend and two of her friends gave perjured testimony at his trial.

In 2001, Martin gave his first-hand perspective of the criminal justice system from death row: "It has no scruples or qualms against presenting an inmate, police informant, or someone willing to provide false evidence just so there will be a conviction...[which is apparent] taking into consideration the many innocent men which DNA testing has proven to be innocent..."

According to the state, Josephine Pedro went to Robinson's Drug Store on the night of Jan. 21, 1983 because Martin had coerced her to do so. After Robinson, the drug store owner let her in and locked the door behind her, Martin shot him through the glass from outside, killing him almost instantly. Pedro initially told police investigators that she knew nothing about the shooting, but later turned on Martin and said he had been planning to rob the store for months.

Since his incarceration in 1983, Martin has spent much his time praying and writing. He is a practicing Christian, and has written extensively on his wrongful conviction and death sentence, as well as issues concerning racial injustice in the application of capital punishment in the United States. In Illinois, Gov. George Ryan recently granted a blanket commutation to all the inmates on death row because of problems with innocence cases and systemic biases. These same issues plague the death penalty process in Ohio, and the state should re-evaluate its system before proceeding with more executions. Please write Gov. Bob Taft and the state of Ohio and request clemency for Ernest Martin.

Clemency Petition of Ernest Martin

APPLICATION FOR EXECUTIVE CLEMENCY FOR ERNEST MARTIN (FEBRUARY 25, 2003)

TABLE OF CONTENTS
I. Introduction …………………………………………………………………………. 1
II. Ernest Martin’s Death Sentence Constitutes Disproportionate Punishment
1. Ernest Martin, and this offense, are not the “worst of the worst”…………………. 3
A. Ernest Martin
i) Youthfulness at time of offense……………………………………………… 3
ii) Lack of history of violence …………………………………………………. 4
iii) History of dual diagnoses – psychological disorder and mental retardation .. 4
B. Offense
i) Plan was to rob, premeditation for murder lacking …………………………. 8
ii) Victim was shot at night through a door ……………………………………. 9
III. Ernest Martin’s Death Sentence Constitutes Unequal Justice, Particularly Considering His Accomplice Received No Punishment Whatsoever ……………… 9
1) Accomplice/state witness Josephine Pedro got off “scot-free” while Ernest Martin received the death penalty ………………………………………………….. ………… 9
2) Ernest Martin has already spent 20 years in prison for the offense ………….. …… 11
IV. Ernest Martin’s 1983 Death Sentence Resulted From An Unfair And Unreliable Process
1. Ohio Death Penalty Law new in 1983 ……………………………………………… 12
2. Inexperience of trial court led to shoddy, unreliable proceedings………………….. 13
3. Inexperience of defense counsel led to poor representation …….………………… 14
4. Resulting verdict and death sentence unreliable (lingering doubts of guilt) ……… 19
V. Role of Clemency ……………………………………………………………………. 23
VI. Totality of Circumstances Warrant Granting of Clemency ……………………… 25
VII. Clemency Request …………………………………………………………………… 26

I. Introduction
Death is not the appropriate sentence for Ernest Martin. Ernest is not among the “worst of the worst” offenders, and his offense, although tragic, is not among the “worst of the worst” crimes. His sentence of death is an egregious example of disproportionate punishment and unequal justice. This is especially true in light of the fact that the accomplice to the offense received absolutely no punishment whatsoever.

Ernest is not among the “worst of the worst” offenders because: 1) he was young, only 22 years old, at the time of the offense; 2) he did not have a significant criminal history of being physically violent toward others; 3) he has suffered in life from a significant psychological disorder; and 4) he has a significant family history of, and has himself suffered from, serious developmental disabilities inclusive of mental retardation.

This offense is not among the “worst of the worst” offenses because: 1) the evidence indicates there was no plan to commit murder; and 2) it is highly questionable whether the perpetrator actually intended to kill the victim when the lethal shot was fired through a door at night.

Ernest Martin’s sentence of death is grossly unjust when compared to the fact that the accomplice, Josephine Pedro, went unpunished in trade for testifying for the prosecution. Ms. Pedro confessed to her crucial role in the crime, a role corroborated by another state witness who said Ms. Pedro had as much to do with the robbery as did Ernest. Yet, while Ernest received the ultimate sanction, Ms. Pedro, accomplice to the murder, walked away free. This unjust and disparate result is virtually incomprehensible. It is most likely due, however, to the abysmal performance by Ernest’s court-appointed counsel. All indications are that counsel was hoping for a plea-bargain and were thus totally unprepared when the case went to trial. Counsel presented absolutely no evidence in defense, choosing simply to rest at the close of the prosecution’s case. Most significantly, counsel failed to present lone eye-witness E.J. Rieves-Bey, whose statements were favorable to the defense. Mr. Rieves-Bey was critical because he was the only witness who observed the gunman running away from Mr. Robinson’s store after the shots were fired. Mr. Rieves-Bey consistently stated that Ernest Martin was not the gunman. Defense counsel failed to ensure Mr. Rieves-Bey’s presence, inexplicably relying on prosecutor Carmen Marino to subpoena him to trial.

Defense counsel likewise performed deplorably at Ernest Martin’s mitigation hearing, where they did more harm to their client than good. Their representation was so deficient that the trial judge felt compelled to take over the hearing, calling out into the courtroom audience searching for volunteers to come up and testify on Ernest’s behalf. This stunning departure from proper procedures created the harmful appearance that even Ernest’s own family members had nothing good to say about him.

Undoubtedly, contributing to defense counsel’s appalling performance was their inexperience under the new capital statute. Ernest’s case was one of the earliest to be tried under Ohio’s new death penalty scheme. Consequently all parties involved lacked experience with the laws and proper procedures. This inexperience resulted in deficiencies and irregularities in the proceedings that contributed significantly to the manifest injustice Ernest incurred. Ernest Martin should not have to pay with his life simply because his trial occurred under these circumstances.

For these reasons, and the reasons more fully presented below, Ernest Martin’s death sentence should not be countenanced by the State of Ohio. In the interests of justice and mercy, Ernest Martin pleads for a recommendation of clemency by the Parole Board in the form of commutation of his sentence.

II. Ernest Martin’s Death Sentence Constitutes Disproportionate Punishment

1. Ernest Martin, and this offense, are not the “worst of the worst”
Virtually all of society agrees that if the government chooses to impose capital punishment, such punishment should be reserved for the “worst of the worst” criminals – i.e., those who commit the most heinous and reprehensible of crimes and those who are considered by society to be the most blameworthy. Ernest Martin does not fall into the category of the “worst of the worst” criminals. This offense does not fall into the category of the “worst of the worst” offenses.

A. Ernest Martin
i) Youthfulness at time of offense
Ernest Martin was young, only 22 years of age, at the time of the instant offense. His youthfulness should be considered as a factor weighing in favor of mercy and the granting of clemency. This is particularly true here, where -- assuming his involvement in the offense -- his immaturity and concomitant proclivity for rash behavior were likely contributing factors in the shooting that occurred.

Youth of the offender is legally recognized as a mitigating factor under Ohio’s death penalty statutory scheme. Ohio Revised Code Section 2929.04, which sets forth the legal criteria for imposition of a death sentence, lists seven (7) factors that are to be considered by the court or trial jury as weighing in mitigation of the offense. The factor listed as number four (4) is “[t]he youth of the offender.”

Ernest Martin was a young man back in January of 1983. He is now 42 years old. He has matured and, like anyone who has aged twenty years, is a very different person today than he was then. His youthfulness at the time should be taken into account by this Board in its consideration of clemency.

ii) Lack of history of violence
Ernest Martin’s life history and prior record do not reflect a depraved human being deserving society’s most severe punishment. His past criminal record is relatively short and demonstrates very little history of violence.

As can be seen from the trial court’s sentencing opinion, Ernest’s juvenile offenses were not serious. Of his three juvenile convictions, one involved breaking a window worth only $6.50 (six dollars and fifty cents), and another involved a theft of a $15 watch. The third conviction was for operating an automobile without the owner’s permission. None of these offenses involved any physical violence of any kind.

Ernest’s adult record also does not reflect that of a hard-core criminal. Prior to the instant offense Ernest was convicted on three occasions. One conviction was for receiving stolen property, another was for carrying a concealed weapon, and the third was for an assault. The assault is the only conviction on either Ernest Martin’s juvenile or adult record that is an offense involving physical violence. Even that offense, however, is somewhat misleading, as it involved a fight with a neighbor over windows being broken out of the Martin’s car. Ernest has always maintained that the neighbor instigated the fight.

Ernest’s record does not depict a violent human being, let alone a cold-blooded killer. The subject offense of 1983 was not within his character. His lack of a violent history or violent nature presents a strong reason for the recommendation of clemency.

iii) History of dual diagnoses - psychological disorder and mental retardation
Ernest’s background reveals an individual who, along with being born into a chaotic, unstable home environment lacking the presence of a positive male role model, suffered from significant psychological problems. In addition, he suffered from a mental disability along the lines of mild mental retardation. Because these deficits were not chosen by Ernest but instead were thrust upon him, particularly the mental deficits which appear to be hereditary, Ernest is less worthy of blame than the common criminal offender.

There appears to be a societal concensus that disfavors executing an individual who suffers from mental illness or mental retardation. For instance, a year 2002 Gallup poll shows that while the majority of American citizens favor capital punishment, they are not in favor of executing individuals who are either mentally ill or mentally retarded. See Appendix, exhibit 1. This survey demonstrates that 75% of United States adults oppose imposition of the death upon the mentally ill. A resounding 82% of the adult population opposes imposition of the death penalty upon the mentally retarded. In light of such figures, it is not surprising that the United States Supreme Court recently held that execution of an individual with mental retardation (whether in the form of mild, moderate, or profound) violates the United States Constitution.1

In Ohio, a mentally retarded person is defined as a person having significantly subaverage general intellectual functioning existing concurrently with deficiencies in adaptive behavior, manifested during the development period. The Supreme Court of the United States recognized the American Association on Mental Retardation (AAMR) and American Psychiatric Association definitions of mental retardation. The AAMR classifies mental retardation as “characterized by significant subaverage intellectual functioning, existing concurrently with related limitation in two or more of the following adaptive areas: communication, self-care, home living, social skills, community use, selfdirection, health and safety, functional academics, leisure and work. Mental retardation manifests itself before age 18.”3

Ernest began exhibiting behavioral and developmental problems at an early age. According to family members, when Ernest was nine or ten years old, teachers at school began expressing concern about him still sucking his thumb and giving limited responses in class. At the age of thirteen Ernest was referred by the school psychologist at Woodland Hills Elementary School to the Child Guidance Center in Cleveland for psychiatric evaluation. He was placed into counseling sessions as treatment. It was noted at this time (age 13) that Ernest was still wetting his bed. Based on a previous assessment by psychologist Nancy Schmidtgoessling, Ernest likely suffers from borderline personality disorder. See Appendix, exhibit 2. An individual with this diagnosis is known to exhibit, among other symptoms, “transient, stress-related paranoid ideation or severe dissociative symptoms.”4 The term “borderline” is used in this diagnosis because the disorder involves components of psychosis and borders on what is referred to in the mental health field as an Axis 1 diagnosis.

3 Mental Retardation: Definition, Classification and Systems of Supports 5 (9th ed. 1992); Atkins, 122 S.Ct. 2242, 2245, n. 3. 4 See Diagnostic and Statistical Manual IV of the American Psychiatric Association, 1994 ed. 5 Ernest Martin’s claim regarding mental retardation as a basis for vacating his death sentence is currently pending in state court. On February 24, 2003, a successor petition was filed in the Cuyahoga County Court of Common Pleas, along with a motion for a stay of execution in the Ohio Supreme Court, seeking to vacate his sentence

Ernest’s mental retardation5
In the 5th grade Ernest was placed in special classes labeled “EMR” – classes for the Educable Mentally Retarded. See Appendix, exhibit 2 (affidavit of mitigation specialist Pam Swanson). At that time Ernest’s IQ tested at 77. Id.; see also Appendix, exhibit 36 (affidavit of Dr. David Hammer, attached to Ernest Martin’s February 24, 2003 successor petition to vacate judgment based on his mental retardation). His placement in EMR classes signifies that early in his life Ernest was diagnosed by educators as being mentally retarded. Ernest has also been tested, as an adult, as having the intellectual functioning level of a 5th or 6th grader. Id. This is consistent with someone being mildly or borderline mentally retarded.

School records indicate that for the most part Ernest remained in classes for the Educable Mentally Retarded, at various schools attended, until he stopped going to school at age 18. After receiving all F’s both semesters of 10th grade and all F’s during a partial stint in the 11th grade (at John Jay High School in Cleveland), Ernest dropped out. It defies reason that Ernest was even passed onto the 11th grade after he obtained all F’s both semesters in the 10th grade. As one family member has stated, it seemed that schools occasionally passed Ernest onto the next grade level because they did not know what else to do.

Further indication that Ernest suffers from some form of mental retardation is that his family has a history of learning and developmental disabilities. Ernest’s sister, Debbie Reese Martin, was placed in Learning Disabled classes beginning at the age of 6 and suffers from depression. Her son (Ernest’s nephew) Curtis Martin, was also in Learning Disabled classes. Ernest’s sister, Rita Martin, was in Learning Disabled classes and also suffers from depression. Rita’s son, Donyelle Martin, is also in Learning Disabled classes, and receives SSI for his disabilities. Ernest also has two children of his own that suffer from developmental disabilities. Ernest’s son, Darnell Reese, was placed in Learning Disabled classes and was in school as Severely Behaviorally Handicapped. Ernest’s other son, Timothy Martin, was likewise placed in pursuant to the United States Supreme Court authority of Atkins v. Virginia. A copy of these pleadings are attached hereto as Appendix exhibit 36.

Learning Disabled classes and has a history of behavioral problems. Ernest also has one grandnephew, Kendrail Davis, who is in mentally retarded/developmentally disabled classes and another grandnephew, Kenneth Davis, who is placed in Special Classes. See Appendix, exhibit 2. The individual history of Ernest Martin as well as his family history strongly indicate that he has suffered throughout his life from mild mental retardation or a disability closely bordering mental retardation. In addition, he suffers from some degree of mental illness, most likely an illness that borders on an Axis 1 diagnosis. Under these circumstances, and in the interests of justice and standards of decency, the execution of Ernest Martin should not be countenanced. This Board should recommend clemency for Ernest Martin and his sentence should be commuted to a life sentence.

B. Offense
i) Plan was to rob, premeditation for murder lacking The shooting death of Robert Robinson, as is the case with any murder, was a horrible and tragic crime. His death certainly caused great grief to his spouse, Anna Robinson, as well as any other surviving family members. The offense, however, does not fall into the category of what is typically considered to be the most heinous and reprehensible of crimes. This is partly because the shooting of Mr. Robinson by all appearances was not preplanned. According to the state’s own witness, Josephine Pedro, in both her signed statement to the police and in her testimony at trial, the only plan discussed was that of robbing the store. There is no suggestion in the record that there was any plan but that of robbery. The shooting, as indicated by the state’s evidence presented, was apparently a knee-jerk reaction to the sudden discovery by the perpetrator that the door had been re-locked.

The record shows that this was troubling to the jury. As the trial transcript reveals, during deliberations, which continued over two nights and three days, the jury interrupted the process and sought further clarification, by way of instructions from the trial court. The jury requested further clarification regarding the legal meaning of each of the following terms: “purposely,” “specific intent,” and “prior calculation and design.” See Appendix, exhibit 3. These substantial questions surrounding whether the perpetrator even truly intended to kill the victim raise a red flag as to whether this offense merits imposition of capital punishment.

ii) Victim was shot at night through a door Further evidence that the perpetrator in this case did not actually intend to kill the victim is the fact that the shots were fired at nighttime, through a partially solid, partially glass door. Poor visibility could have been a factor in the offense. The trial record is devoid of any discussion regarding visibility through the door that night. However, photographs of the scene are available. See Appendix, exhibit 4. The photographs suggest that visibility through the door may well have been obscured. The photographs raise substantial questions regarding the intent of the gunman.

III. Ernest Martin’s Death Sentence Constitutes Unequal Justice, Particularly Considering His Accomplice Received No Punishment Whatsoever

1) Accomplice/state witness Josephine Pedro got off “scot-free” while Ernest Martin received the death penalty

Facts of the offense
Ernest Martin’s death sentence resulted from a June 1983 aggravated murder conviction in the Cuyahoga County Court of Common Pleas for the shooting death of Robert Robinson. During the early morning hours of January 21, 1983, Josephine Pedro entered a small, cut-rate drug store owned by Mr. Robinson on Fairhill Road in Cleveland, Ohio. As Mr. Robinson, age 70, finished locking the door behind Ms. Pedro, two shots were fired through the glass portion of the door. One of the shots struck Mr. Robinson in the chest, ultimately causing his death. The only other individual in the store at the time of the shooting was employee Monty Parker. Mr. Parker was in the back of the store (in the wine room) from where he heard shots fired but did not witness the shooting.

There were no witnesses to the actual shooting. There was one witness, however, E.J. Rieves-Bey, who lived across the street from Mr. Robinson’s store and who looked out his window after hearing the shots fired and observed a man running away from the scene. A few minutes after the shooting, Ernest Martin arrived at the store, as did witness E.J. Rieves-Bey. Both Ernest and Mr. Rieves-Bey talked to the police officers who arrived at the scene. The police also talked to Monty Parker, and Josephine Pedro.

On January 26, 1983, Antoinette Henderson gave a statement to the police in which she claimed that during the previous month of December 1982 she had overheard Ms. Pedro and Ernest Martin discussing a possible robbery of Mr. Robinson. Ms. Henderson, as it turns out, was an acquaintance of Ms. Pedro and Ernest Martin and had lived with them up until shortly before the subject offense. Prior to the January 21, 1983 shooting of Mr. Robinson, Ms. Henderson had a falling out with Ernest Martin and Ms. Pedro and was forced to move out of their residence.

On January 29, 1983, eight days after the shooting, the police entered the residence of Ernest Martin and Josephine Pedro and, apparently without a warrant, arrested them both. On January 31, 1983, after approximately 72 hours in custody, Ms. Pedro gave a statement to the police in which she incriminated herself, but also identified Ernest Martin as the gunman in the shooting death of Mr. Robinson.

At trial, physical or forensic evidence was lacking. There was no physical evidence retrieved from the scene directly linking Ernest to the crime. No murder weapon was ever produced by the state. Nor was any physical evidence of a robbery produced by the state. Store employee Monty Parker testified that he was aware of no money having been taken from the store. The prosecution’s chief evidence against Ernest Martin was the testimony of accomplice Josephine Pedro. Ms. Pedro testified about the plan to rob Mr. Robinson’s store. The plan was for Ms. Pedro to get Mr. Robinson to open the door to the store -- which he was known to keep locked during late hours -- under the pretense that she needed to purchase some Nyquil for a cough. Ernest was then to come into the store behind her and rob Mr. Robinson. Based on Ms. Pedro’s testimony, Ernest was not only found guilty but received the ultimate sanction – death by execution. Yet Ms. Pedro was never prosecuted and received no punishment whatsoever.

This grossly disparate outcome constitutes disproportionate punishment. On this basis, Ernest Martin’s death sentence should be commuted.

2) Ernest Martin has already spent 20 years in prison for this offense
As of this summer, Ernest Martin will have been imprisoned on Ohio’s death row for 20 years. Due to the unique status of capital-sentenced inmates, conditions on death row are very restrictive. For example, inmates on death row have access to very little programming compared to the inmates in the general prison population. Twenty years of death row confinement, awaiting execution, is a long time and is severe punishment in and of itself. Given the circumstances of this offense, particularly the uncertainty regarding the intent of the shooter, Ernest Martin has already received considerable punishment.

Recently in Knight v. Florida, United States Supreme Court Justice Breyer discussed the impact of a lengthy delay upon an individual awaiting execution: It is difficult to deny the suffering inherent in a prolonged wait for execution--a matter which courts and individual judges have long recognized. [Citation omitted] More than a century ago, this Court described as "horrible" the "feelings" that accompany uncertainty about whether, or when, the execution will take place. * * * At the same time, the longer the delay, the weaker the justification for imposing the death penalty in terms of punishment's basic retributive or deterrent purposes. [Citation omitted] Nor can one justify lengthy delays by reference to constitutional tradition, for our Constitution was written at a time when delay between sentencing and execution could be measured in days or weeks, not decades.6

The concerns expressed by Justice Breyer are applicable here. Furthermore, Ernest Martin’s length of confinement is now twenty years greater than that of accomplice Josephine Pedro. This disparate treatment is unconscionable. Ernest Martin should be granted clemency and his sentence should be commuted.

IV. Ernest Martin’s Death Sentence Resulted From An Unfair And Unreliable Process Ernest Martin’s death sentence was a consequence of a flawed and unfair trial process. The results of his trial, regarding both his actual guilt of the offense and his deserving of a death sentence, are suspect and unreliable.

1. Ohio’s death penalty law was new in 1983
Ernest Martin’s capital trial in June 1983 was one of the earliest to go to trial under Ohio’s newly enacted death penalty statute that became effective in October of 1981. Thus, none of the parties involved in Ernest Martin’s trial could possibly have been experienced with capital proceedings under Ohio’s new death penalty statutory scheme. Defense counsel, for example, undoubtedly had no experience in presenting a case in mitigation (at the sentencing phase) under the new procedures and new legal standards. Nor would counsel have had any other sources from which to obtain experienced guidance. It is readily apparent from the record of the trial that, as a consequence of this lack of experience under the new death penalty provisions, Ernest Martin suffered severely. In the end, Ernest Martin was sentenced to death under circumstances that fall short of the exacting level of confidence necessary to carry out his execution.

2. The inexperience of the trial court led to shoddy, unreliable proceedings.
The 1983 trial record reveals a number of irregularities occurring during the proceedings and calls forth a host of questions and suspicions regarding the outcome of Ernest Martin’s trial. In all likelihood the court’s, and counsel’s, unfamiliarity with a new process contributed to these irregularities. Regardless of the cause, however, the result was an unfair process for Ernest Martin.

Perhaps the most notable irregularity in this case is the lack of a complete record of trial proceedings. Significant portions of the proceedings are missing. Despite it being a capital case, the trial court, as well as defense counsel and the prosecutors, failed to ensure that a thorough record was preserved. First, none of the pre-trial proceedings held in court were recorded. Second, the proceedings are replete with side-bars (discussions between court and counsel at the bench) that were not recorded. Third, at both the culpability phase and the mitigation (sentencing) phase, the proceedings occurring when the jury returned from deliberations and returned its verdict, (which should include individual polling of the jury), were not recorded. Fourth, it has always been suspected, though counsel for Ernest Martin has never been able to prove, that immediately following the jury being sent into deliberations at the culpability phase, there were proceedings before the court regarding witness E.J. Rieves-Bey, who was a critical witness for the defense but never testified because he showed up minutes late for trial. Lastly, the record of the proceedings occurring in September and October of 1983 regarding a defense motion for new trial is also irregular. The transcript of that record ends with a notation that the hearing was continued until a further date. No further record exists.

The trial court engaged in improper behavior by over-reaching and taking on the role of an advocate in the case. For instance, prior to the mitigation hearing the trial judge took over the role of counsel – seemingly for the defense but actually in favor of the prosecution. As the parties approached the mitigation hearing, the record reveals that the trial judge, on his own initiative, undertook investigative action to obtain Ernest Martin’s psychiatric records. Astonishingly, the trial judge had the records sent directly to the court and not to defense counsel. Without objection by defense counsel, the trial judge reviewed the documents and stated on the record his interpretation of them regarding their lack of value as evidence for the defense.7 See Appendix, exhibit 5.

At the mitigation hearing the trial judge again took over the role of defense counsel – again to the detriment of Ernest Martin – when the judge began calling out into the audience seated in the courtroom looking for volunteers to come to the witness stand to testify on Ernest Martin’s behalf. See Appendix, exhibit 6. This stunning departure from proper procedures prejudiced Ernest in that it created the impression that Ernest’s own family members had nothing good to say about him.

3. The inexperience of defense counsel led to poor representation.

7 The Cuyahoga County trial judge in this case, Daniel O. Corrigan, does not have a stellar record. In 1976 Judge Corrigan was reprimanded by the Cleveland and Cuyahoga County Bar Associations for failing to conform his conduct to the precepts of the Judicial Canons of Ethics and the Judicial Code of Conduct. This stemmed from findings that Judge Corrigan, who was known to be heavily in debt at the time, had been involved in business transactions with attorneys who appeared before him or received appointments by him. See Appendix, exhibit 7. Years later, in 1988, Judge Corrigan was sued by a Cleveland defense attorney who claimed that the Judge appointed attorneys to cases dependent upon their contributions to his election campaign, averring that the Judge “trade[d] cases for cash.” State of Ohio, ex rel. Kirtz v. Corrigan, 1990 WL 7158 (Ohio App. 8Dist).

Ernest Martin received minimal assistance at both phases of his trial from courtappointed counsel. This minimal assistance contributed to his receiving an overall unfair trial. Counsel inexplicably allowed the case to be rushed to trial. Ernest was indicted on February 9, 1983, and defense counsel James Carnes and Herbert Adrine were assigned to the case on March 2, 1983. The trial began on June 6, 1983. The record suggests that counsel was hoping for a plea agreement and did not expect to go to trial. That translated into an utter failure to prepare their case for trial.

Defense counsel’s poor performance began with their numerous failures in the pretrial preparation. Defense counsel filed a total of three (3) pre-trial motions: a motion for discovery, a motion for an investigator, and a motion to sever offenses. Such a paucity of pretrial defense motions is unheard of in a capital case. Counsel failed to file the most obvious of pretrial motions – a request for a bill of particulars, a motion to suppress evidence based on a warrantless arrest, a motion for funds for an expert in ballistics - let alone the host of other motions which are filed by defense counsel in a capital case as a matter of course to at least preserve issues for appeal. Defense counsel’s failure to file any challenges to the constitutionality of what was then Ohio’s new death penalty law exposes their cavalier approach to Ernest’s case. Even though Ohio’s statute has withstood challenges over the years, back then failing to fulfill their rudimentary duty to challenge a new statute for a capital client reveals their across-the-board ineffectiveness.

Furthermore, defense counsel failed to adequately investigate the facts of the case. Most importantly, counsel failed to personally meet with and interview witness E.J. Rieves-Bey. Mr. Rieves-Bey was an important witness because he was the only witness who observed the gunman running away from Mr. Robinson’s store after the shots were fired. Counsel did obtain a statement from Mr. Rieves-Bey taken by a court-appointed investigator well before trial. The statement was certainly helpful to the defense in that Rieves-Bey was able to say that: 1) “I think they got the wrong man.”; 2) the man he saw running from the store was bigger than Ernest Martin; and 3) Antoinette Henderson (Rieves-Bey’s sister-in-law who testified about the planning of the robbery), was “a big liar” who was feuding with Josephine Pedro and holding a grudge against both Ms. Pedro and Mr. Martin.

Defense counsel failed to seize upon the usefulness of this witness in conducting their defense. Based on his above statements alone, defense counsel should have, at a minimum, met with E.J. Rieves-Bey, prepared him for testifying, and subpoenaed or otherwise secured his presence for trial. Defense counsel also should have conducted interviews of Antoinette Henderson, E.J. Rieves-Bey’s brother (common-law husband of Ms. Henderson), and Ms. Pedro based on Mr. Rieves-Bey’s statement regarding Ms. Henderson’s motives for lying to the police. Defense counsel did none of this, and instead incredibly relied upon prosecutor Carmen Marino to subpoena Mr. Rieves-Bey to appear. For some reason Mr. Rieves-Bey did not timely make it to court.8

8 The record of the prosecutor, Carmen Marino, like that of Judge Corrigan, is not untarnished. Prosecutor Marino has a proven track record of violating constitutional rules of fair play at trial. State v. Liberatore, 69 Ohio St.2d 583, 589-90 (1982) (“the prosecutorial blunders in this case are too extensive to be excused.”); State v. Owensby, 1985 Ohio App. LEXIS 7351, *3 (1985) (“prosecutor’s comments clearly outside the bounds of mere ‘earnestness and vigor[.]’”); State v. Heinish, 1988 Ohio App. LEXIS 3644, *20 (1988) (“Clearly the prosecutor improperly commented on excluded evidence.”); State v. Lott, 51 Ohio St. 3d 160 (1990); State v. Harris, 1990 Ohio App. LEXIS 5451 (1990) (prosecutorial misconduct found, but harmless); State v. Hedrick, 1990 Ohio App. LEXIS 5647 (1990) (prosecutorial misconduct by making improper comments on matters outside of record and on defendant's failure to testify.); State v. Durr, 58 Ohio St.3d 86 (1991) (improper comments on the appellant's unsworn statement, the appellant's prior convictions, and mitigating factors held harmless.); State v. Keenan, 66 Ohio St.3d 402 (1993) (presenting an “aggravated example” of prosecutorial misconduct); State v. D’Ambrosio, 67 Ohio St.3d 185 (1993) (prosecutorial misconduct found, but either waived or harmless); State v. Johnson, 1992 Ohio App. LEXIS 4256, *17 (1993) (prosecutorial misconduct “[rose] to the level of being constitutional errors.”); State v. Matthews, 1999 Ohio App. LEXIS 896, *5 (1999) (prosecutor denied making a deal with witnesses, however “[t]here is ample evidence to suggest that [the witness] at least did in fact receive just what the assistant county prosecutor said he would not give him.”).

Defense counsel’s failure to ensure the presence of E.J. Rieves-Bey was inexcusable. He was the lone witness the defense planned to present, as evidenced by counsel’s reference to Mr. Rieves-Bey during opening argument. See Appendix, exhibit 8. His testimony was highly important. Though the state has argued that Rieves-Bey’s statements were in some ways consistent with the story of Josephine Pedro, Mr. Rieves-Bey has always maintained that the man he saw running away from the store after the shots were fired was not Ernest Martin. After Mr. Rieves-Bey failed to appear, counsel had nothing whatsoever to present in defense. Indeed, the defense rested without putting on any witnesses or evidence of any kind. At Ernest Martin’s sentencing hearing, defense counsel exhibited a complete lack of experience and understanding as to how to present a case in mitigation. Counsel’s performance at mitigation was nothing short of abysmal.

Defense counsel wholly failed to prepare for the mitigation hearing. Remarkably, defense counsel failed to do even the most obvious preparation by neglecting to conduct an investigation into Ernest’s background. In order to properly prepare and present evidence in mitigation, it is necessary to investigate and assess the client’s life history, including psychosocial and physical development. Mitigation investigation requires thorough interviewing and record collection, with the interviewing typically beginning with the client’s immediate family, and extending to significant others such as teachers, mentors, local pastors, and additional relatives and acquaintances.

Here, except for reportedly limited and frustrating contacts with the father, counsel failed to even meet with and/or interview Ernest’s immediate family. These family members included Ernest’s mother, three brothers, three sisters, and grandmother – all of whom were willing to assist Mr. Martin in any way they could. See Appendix, exhibits 9-16.

Counsel also failed to conduct a collection of records and documentary evidence pertinent to their client and his history. The most obvious documents counsel failed to pursue were Ernest’s medical, mental health, educational, employment, juvenile and adult prison records. Counsel further failed to seek the services of an expert to pursue possible medical, psychological, sociological or other explanations for the offense for which their client was being sentenced.

Given counsel’s lack of preparation, it is not surprising that the mitigation hearing was nothing short of disastrous. First, defense counsel waived opening argument. This failure is inexcusable in a capital case and indicates a complete lack of a defense theme or strategy. Second, defense counsel called only two witnesses: 1) a probation officer; and 2) Ernest’s mother.

The probation officer testified for 2-3 minutes in order to place a probation report into evidence which did more harm than good. The report brought in evidence of Ernest’s juvenile record and a victim impact statement which, but for counsel’s grave error, never should have gone to the jury. Ernest’s mother, the only witness of the two called by defense counsel who could do any good for the client, was unprepared. While counsel did ask her to write a statement concerning her son, Mrs. Martin was not informed until the day of the mitigation hearing that she would be asked to testify. See Appendix, exhibit 9. Nor had counsel contacted Mrs. Martin before the mitigation hearing to confirm or discuss any information that she had provided in her written statement regarding her son’s background. Of course, trial counsel should have begun discussing Mrs. Martin’s testimony with her months before when they should have interviewed her as a fact witness for trial, let alone at some point before the mitigation hearing. This deficient performance by counsel was wholly ineffective and constituted an abdication of advocacy on behalf of the client.

The mitigation hearing deteriorated following Mrs. Martin’s testimony. At that point defense counsel declared to the court that they had nothing further to offer. Yet the hearing continued. The trial judge, perhaps due to perceived inadequacies of counsel, proceeded to assume counsel’s role. Remarkably, the trial judge began calling out to the audience seated in the courtroom looking for volunteers to come to the witness stand to testify on Ernest Martin’s behalf. Defense counsel allowed this circus-like atmosphere to flourish without objection. The trial court’s conduct created the prejudicial and incorrect appearance that not even Ernest Martin’s closest family members desired to say anything positive on his behalf. See Appendix, exhibit 6. Many of Ernest’s family members could have testified at his mitigation hearing, but they were never interviewed, let alone prepared, by defense counsel. See Appendix, exhibits 9-16. Ernest’s grandmother was then “put on the spot” by the trial court and decided on the spur of the moment to testify. Her unprepared testimony, which constituted all of five pages of transcript, concluded the pathetic defense in mitigation.

In sum, Ernest Martin’s court-appointed counsel performed poorly at all phases of his trial. Their failures were pervasive. Their poor performance certainly contributed to the overall unfairness of Ernest Martin’s trial and to the undue harsh result Ernest incurred.

4. The resulting verdict and death sentence are unreliable
The trial of Ernest Martin was unfair. The trial was unfair because: the trial court and counsel were unfamiliar with trying a capital case under the new death penalty statute; important portions of the trial record were not kept or are otherwise missing; important pieces of physical evidence were destroyed and no longer exist; the trial court engaged in over-reaching and improper conduct; the prosecution relied not on physical or forensic evidence but on the testimony of suspect witnesses; defense counsel inexplicably failed to subpoena the presence of the lone planned defense witness, under suspicious circumstances wherein defense counsel relied on a subpoena issued by the prosecuting attorney; and defense counsel practically abandoned their client after he insisted on his innocence and demanded a trial, failing to present any defense at the culpability phase and allowing the mitigation phase to collapse before the court and jury.

Lingering doubts about guilt
Due, in part, to this unfairness, there continue to be lingering doubts regarding Ernest’s guilt. The prosecution’s case relied upon suspect witnesses, not physical evidence. Virtually no physical or forensic evidence was produced at trial proving Ernest Martin shot Mr. Robinson. No gun that could be linked to the shooting was ever produced. No items of evidence such as clothing taken from Ernest Martin on which the victim’s blood, or pieces of glass from the door, was found to connect him to the crime. Nor was there any evidence of gunshot residue, from paraffin tests, found on Ernest Martin or his clothing.

The state’s witnesses, upon whose testimony the state largely rested its case, were untrustworthy and unreliable. Witness Josephine Pedro was an alleged accomplice to the murder. Although she testified that she was not provided any promises in exchange for her testimony against Ernest Martin, she very curiously was never prosecuted, nor apparently charged, with any offense related to the murder. See Appendix, exhibit 17. Given what Ms. Pedro had to gain, i.e. her freedom from lengthy incarceration, by satisfying the state’s desire that she testify against Ernest Martin, her testimony is highly suspect. Witness Antoinette Henderson, who could only say that she overheard a conversation between Ernest and Ms. Pedro in which they purportedly discussed the possibility of robbing Mr. Robinson, was also unreliable. Ms. Henderson had formerly resided with both Ms. Pedro and Ernest, and reportedly had had a falling out with the two of them that caused her to have to move out of the residence. See Appendix, exhibit 18, at pp. 7-8. Further, Ms. Henderson was plainly shown to be untrustworthy while on the witness stand. During cross-examination, for example, defense counsel caught her in a bald-faced lie, under oath, regarding the number of children to whom she had given birth. See Appendix, exhibit 19. Furthermore, according to the statement provided by E.J. Rieves-Bey, Ms. Henderson was known to “lie about everything.” See Appendix, exhibit 18, at p. 5. The testimony of Ms. Henderson, like that of Josephine Pedro’s, merits little consideration.

In addition, evidence was weak to prove the “specific intent” to kill necessary for Ernest’s conviction. The very circumstances of the crime call this element of the offense into question. The evidence presented was that Mr. Robinson was shot through a glass door, late at night, while Mr. Robinson was standing inside his store and the perpetrator was outside. No evidence was presented by the State to demonstrate the extent of visibility, if any, into the store that the perpetrator would have or could have possessed. None of the witnesses testified as to how much of the door was composed of glass, as opposed to how much of it was solid wood or other material.

Moreover, Ms. Pedro’s statement to the police confirms that, if her story is to believed, there was never any intention to kill Mr. Robinson; rather, the intention was only to rob him: “T.J. [Ernest] told me that all he was going to do was pull the gun and Robb [sic] the old Man and get the money and split.”9 Under these circumstances, and in light of the lack of evidence presented by the state on this issue, a myriad of scenarios can be conceived consistent with the evidence presented in which the perpetrator of the offense fired the gun without possessing the requisite specific intent to kill someone.10 In cases of circumstantial evidence, as is the case here, the jury should be able to rule out other possible scenarios that are consistent with the evidence presented. Here, however, the evidence was insufficient to rule out other possible scenarios in which the requisite specific intent to kill was absent.

The question of “specific intent” was of sufficient import that it was clearly a concern to Ernest’s jury. Indeed, during their deliberations at the culpability phase, the jury forwarded a written note to the trial judge requesting clarification of their instructions on this issue. See Appendix, exhibit 20. In sum, the state’s case relied on weak, circumstantial evidence. The evidence produced posits a theory of a crime based upon speculation and the testimony of unreliable witnesses. As a consequence there continue to be lingering doubts regarding Ernest Martin’s guilt. Under such circumstances, his death sentence should be commuted.

Death sentence an unreliable result
The unfairness and irregularities of Ernest’s mitigation hearing likewise undermine confidence in the accuracy, and appropriateness, of his sentence of death. Ernest might not be on death row today were it not for the miserable performance of his defense counsel. Counsel helped ensure a death verdict by failing to present anything of mitigating value. Had counsel fulfilled their duty to conduct a background investigation of their client, and had counsel presented available mitigating evidence, e.g., regarding both Ernest’s psychological dysfunction and problems in the area of mental retardation, the jury may have been swayed to impose a different sentence.

9 January 31, 1983 Police Statement of Josephine Pedro. 10 As examples of such possible scenarios, the perpetrator may have simply panicked when he encountered the locked door to the store, and began firing his gun without particularly aiming at anything or thinking precisely about where he was shooting; or the perpetrator may have encountered the locked door and intended only to shoot through the door to gain entrance into the store, not intending to hit anyone with the gunshots. 11 The other recognized purpose for vesting the power of clemency in the executive was that it permitted the president to pursue ends beneficial to the state such as the quelling of rebellions or the protection of spies.

Ernest’s death sentence is further unreliable because the record of the jury returning their recommendation of a death sentence is missing. When the jury returns its verdict, each jury member is typically “polled” to confirm that the verdict truly reflects his or her individual decision. Without any record of this, there is, and will always be, an uncertainty regarding the death verdict delivered.

V. Role of Clemency
The role of clemency, in short, is to correct manifest injustice and to temper harsh and disproportionate court rulings with the Executive’s power of mercy. The discretion to grant clemency is broad.

The power of clemency is vested in the governor of Ohio by Article III, Section 11, of the Ohio Constitution. The governor is given broad discretion in exercising that power. Section 11 empowers the governor to grant reprieves, commutations, and pardons for all crimes and offenses (except in cases of treason and impeachment), “upon such conditions as he may think proper.” While there is little known legislative history behind this provision of the Ohio Constitution, it is considered probable that the power was given to the governor for reasons similar to those that led to the vesting of the federal clemency power in the president. One of the two distinct purposes behind the authorization of the presidential power of clemency was that it acted as a check on the legislative and judicial branches by permitting the president to rectify injustices that might result from inflexible adherence to the law.11

In Ohio, applications for pardon or commutation of sentence are to be made to the Ohio Adult Parole Authority (APA), which subsequently issues a report and recommendation to the governor.12 The little guidance provided by way of statutory or administrative standards as to when clemency should be recommended by the APA is broad in scope, and speaks to the interests of justice. Specifically, the guidance given is that the APA may recommend clemency if it reasonably concludes that such action “would further the interests of justice and be consistent with the welfare and security of society.”13

The United States Supreme Court has also clarified the role of clemency. In Ex parte Grossman, addressing the role of the pardoning power in the federal constitutional scheme, the Supreme Court stated: Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential … to vest some other authority than the court’s power to ameliorate or avoid particular criminal judgments.14

The Supreme Court emphasized the importance of discretion in the exercise of the clemency power, stating that “whoever is to make it useful must have full discretion to exercise it.”15 More recently, in Herrera v. Collins, the Supreme Court described the power of executive clemency as the “fail-safe” in the American criminal justice system, recognizing that “[i]t is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.”16 The role of clemency has taken on greater significance in recent years due to state and federal legislation restricting an inmate’s access to state post-conviction and federal habeas corpus relief. Changes in both state law in Ohio and federal law in 1996 make it exceedingly more difficult for an inmate to bring forth any subsequent petitions for judicial relief beyond his “one bite at the apple” in state and federal post-conviction proceedings. It is a virtual mathematic certainty that such restrictions will result in fewer injustices in capital cases being rectified by the courts. For this reason, the broad power to grant clemency should be exercised more frequently to serve as the safety net for those injustices the courts fail to address.17

VI. The Totality of Circumstances Warrant Clemency
The totality of the circumstances presented herein warrant the granting of clemency to Ernest Martin. As demonstrated, there are a number of injustices extant in Ernest’s case. If not in their individual capacity, then considered as a whole, these injustices demand relief. The numerous injustices incurred by Ernest relate to, and exacerbate, one another. The injustice of Ernest receiving death for an offense not among the “worst of the worst” relates to the injustice of accomplice Josephine Pedro getting off “scot-free.” If the offense had truly been so appalling and heinous, it is unlikely that the prosecution would have allowed an accomplice to go completely free.

The injustice of Ernest receiving death despite his serious mental disabilities also relates to the injustice resulting from Ms. Pedro’s freedom, in that Ernest’s mental deficits make it likely that Ms. Pedro, more so than Ernest, was responsible for plotting the robbery. Lastly, the injustice of the disproportionate punishment and the extremely disparate result between Ernest Martin and Josephine Pedro is inter-related with the injustice of the unfair trial process. The combination of the lack of experience of the parties regarding the newly enacted death penalty laws and procedures, the irregularities that occurred (including defense counsel relying on a prosecutor to subpoena a defense witness), the inappropriate conduct of the trial judge, the intellectual deficits of the client, and the abysmal performance by court-appointed defense counsel, explains how such a manifest injustice could occur.

VII. Clemency Request

Ernest Martin, through counsel, in the interests of justice and mercy, pleads for clemency and asks for a commutation of his death sentence to a life sentence.

Respectfully submitted,

DAVID H. BODIKER, Ohio Public Defender
TIMOTHY R. PAYNE, Assistant State Public Defender KYLE E. TIMKEN, Assistant State Public Defender Counsel For Petitioner ERNEST MARTIN

APPENDIX OF SUPPORTING DOCUMENTS Exhibit 1 2002 Gallup Poll regarding death penalty and mental retardation Exhibit 2 February 21, 2003 Affidavit of Mitigation Specialist Pam Swanson Exhibit 3 Trial transcript, pp. 644 Exhibit 4 Photos of crime scene - store door Exhibit 5 Trial transcript, pp. 651-54, 688 Exhibit 6 Trial transcript, pp. 690-91 Exhibit 7 March 3, 1976 news article – Judge Daniel O. Corrigan Exhibit 8 Trial transcript, p. 43 Exhibit 9 July 13, 1987 Affidavit of Frances Martin Exhibit 10 July 13, 1987 Affidavit of Terry Davis Exhibit 11 July 13, 1987 Affidavit of Lee Martin, Jr. Exhibit 12 July 13, 1987 Affidavit of Eric Martin Exhibit 13 July 13, 1987 Affidavit of Erwin Martin Exhibit 14 July 13, 1987 Affidavit of Debra Reese. Exhibit 15 July 13, 1987 Affidavit of Rita Martin Exhibit 16 Trial transcript, pp. 314-15 Exhibit 17 March 28, 1983 statement of E.J. Rieves-Bey Exhibit 18 Trial transcript, pp. 358-59 Exhibit 19 Trial transcript, pp. 644-50 Exhibit 20 Letter from Debrah Reese Martin (Ernest’s sister) Exhibit 21 Letter from Erwin Martin (Ernest’s brother) 28 Exhibit 22 Letter from Curtis Martin (Ernest’s nephew) Exhibit 23 Letter from Germaine Grayson (friend of family) Exhibit 24 Letter from Frances Martin (Ernest’s mother) Exhibit 25 Letter from Hattie Johnson (Ernest’s grandmother) Exhibit 26 Letter from Rita Martin (Ernest’s sister) Exhibit 27 Letter from Laketta Tate (Ernest’s daughter) Exhibit 28 Letter from Kathryn Davis (Ernest’s niece) Exhibit 29 Letter from Terry L. Davis (Ernest’s sister) Exhibit 30 Letter from Shelley Reese (mother of Ernest’s child) Exhibit 31 Letter of Valerie Tate (mother of Ernest’s two children) Exhibit 32 Letter from Beverly A. Keyes (friend of family) Exhibit 33 Letter from Rosa Lee (friend of family) Exhibit 34 Letter from Vanessa Tate (aunt of Ernest’s two children) Exhibit 35 Letter from Reverend Robert Hull (friend of family) Exhibit 36 February 24, 2003 Motion for Stay and Petition to Vacate Judgment based on mental retardation (Cuyahoga County Court of Common Pleas)