The state parole board on Friday recommended mercy for Ronald Post based on claims raising doubts about his legal representation, not because he says he's so fat he can't be humanely executed.
The board rejected arguments made by Post's attorneys that he deserves mercy because of lingering doubts about his "legal and moral guilt" in a woman's death, but it said it couldn't ignore perceived missteps by his lawyers.
The board's recommendation, by a vote of 5-3, goes to Kasich, who has the final say. Post is scheduled to die Jan. 16 for killing Elyria motel clerk Helen Vantz in a 1983 robbery.
"Post took Vantz's life, devastating the lives of her loved ones in the process," the board said. But it said a majority of its members agreed his sentence should be commuted to life in prison without chance of parole because of omissions, missed opportunities and questionable decisions made by his previous attorneys and because that legal representation didn't meet expectations for a death penalty case.
Post never raised his weight issue with the board, but instead is arguing in federal court on Monday that he would suffer "a torturous and lingering death" as executioners tried to find a vein or use a backup method where lethal drugs are injected directly into muscle.
Kasich can consider anything he wants, regardless of court rulings or whether a claim — in this case Post's weight — was made as part of the clemency petition, Dan Kobil, a Capital University law professor and expert on clemency.
Governors in decades past would consider an inmate's youth and whether they had a mental disability, even before executing juveniles and those with disabilities was ruled unconstitutional, Kobil said.
"That's what clemency is there for, to take into account the oddball case that doesn't fall into the normal sorts of parameters of the law," Kobil said.
Post's current attorneys said they were pleased by the recommendation.
"In the nearly 30 years since his case began, Ronald Post has too often been failed by the attorneys assigned to represent him, beginning at his trial," public defenders Joe Wilhelm and Rachel Troutman said in a statement.
Vantz's sons, William and Michael, have said they believe in Post's guilt. William Vantz characterized Post's obesity claim as "another way for a coward to try and get out of what debt he owes to society."
The long-held presumption that Post confessed to the murder to several people has been falsely exaggerated, Post's attorneys argued. Post admitted involvement in the crime as the get-away driver to a police informant but didn't admit to the killing.
"Sure ain't no murderer," Post told that informant, according to Post's clemency filing.
The dissenting parole board members said that it is clear Post killed Vantz and that questionable moves by his attorneys don't outweigh the circumstances of the case.
Doubt about Post's guilt lingers because of the involvement of two other men in the shooting, Post's attorneys argue. Post pleaded no contest to the crime on the advice of his attorney in expectation he would receive a life sentence, they said. Even after his plea, he told a psychologist "he was not a murderer."
Post's attorneys argue that prosecutors misrepresented to the judge that Post had confessed to sole involvement in Vantz's death.
"The death penalty should be reserved for cases where proof of guilt is reliable and the legal system produced a just result," the defense had said. "Neither criteria is met in this case."
Lorain County prosecutor Dennis Will had pointed to the written no contest plea, in which Post acknowledged responsibility, as "a compelling reason" to reject clemency. Will said Friday he disagreed with the decision.
"I don't think that he is someone who should receive clemency even based on the procedural issues that they address," Will said. "He's fully been able to receive due process and litigate those."