Ohio's youngest death row inmate never touched the murder weapon. Why was he sentenced to death?

Austin Myers (left) and Timothy Mosley

The plan was to rob Justin Back's place and kill him.

Austin Myers would distract him, giving Timothy Mosley an opening to choke Back with a garrote made out of two handles and a wire cable.

Then, the two 19-year-olds would dump Back's body and douse it with septic enzymes so that it would decompose faster.

Almost everything went according to plan. Almost.

In January 2014, court records say, Myers and Mosley showed up at Back's home in rural Waynesville, Ohio, under a false pretense that they wanted to hang out and watch movies with the 18-year-old. Myers lured Back into the kitchen as Mosley came up from behind. But the garrote ended up across Back's chin, and not his neck.

Back tried to escape, and all three teens ended up fighting on the kitchen floor.

Panicking, Mosley improvised. He pulled out a pocket knife and stabbed Back 21 times.

As the knife pierced his skin and flesh, Back begged Myers for help. Back didn't know Mosley, but he'd known Myers since they were in middle school.

"Relax; it will be over soon," Myers told Back, according to testimony.

Back died of blood loss, court records say. His assailants cleaned up the crime scene, wrapped Back's body in a blanket and dumped it in a wooded area in a neighboring county.

There, Myers fired two rounds into Back's corpse before pouring the septic enzymes.

Mosley and Myers were eventually convicted in the death.

Both had hatched an elaborate plan to rob and kill Back. But their fates took opposite turns.

Mosley, the one who used the garrote and knife on Back, is in prison for life.

Myers, who ignored Back's pleas for help but didn't strike the fatal blow, has been sentenced to die.

The disparity in the punishments for the two men was the result of their own legal decisions.

Mosley struck a plea deal that spared him from a death sentence.

Myers decided to go to trial and was convicted. His death sentence is now the subject of an appeal to the Ohio Supreme Court, which could hear it next year.

The state's justices must decide whether Myers should have received the same punishment as Mosley, or whether he was more culpable and deserving of the harshest punishment of all - even if he did not strike the fatal blow.

His appellate attorney, Timothy McKenna, said Myers's sentence should be reduced to life without parole.

"The state is arguing that both defendants planned the murder, both are equally culpable," McKenna said. "If you believe that, then why is our client getting the death penalty and the other guy is getting life without parole?"

But Warren County Prosecutor David Fornshell said that if anybody deserved any degree of mercy, it wasn't Myers but Mosley. He'd been cooperative, even pointing investigators to evidence that incriminated not only Myers, but also himself. Although Mosley was the attacker, the idea to kill Back came from Myers, Fornshell said.

He added that there was never any indication that Myers, who was caught on a store surveillance video buying the garrote and whose fingerprints were found on it, intended to plead guilty.

Franklin Zimring, a law professor at the University of California at Berkeley, said the case presents a problematic scenario in which the punishment is based not on the level of culpability but on who decides to cooperate.

"It's crystal clear that the difference between life or death is electing a jury trial, not what happened at the crime scene," said Zimring, who has written about capital punishment. "The thing that makes that forcefully problematic is that the only difference between life and death is the procedural decision that the defendant made."

But Warren County Common Pleas Court Judge Donald Oda II said in court records that Myers is more culpable because Mosley would not have had any reason to hurt Back if it weren't for Myers, who'd known Back since middle school.

"Myers was the brains, but Mosley was the weapon that he used. He came up with all the plans to do it," said Back's stepfather, Mark Cates. "He chose to get Mosley to help him. He chose Justin."

Looking back, Mark Cates says he wishes Myers and Mosley had made other choices on the afternoon of Jan. 28, 2014.

They could have waited a couple more weeks to rob, and no one would have been home. Back would have left to join the Navy, and Cates and his wife would have been at work.

But the teens - specifically Myers - chose to rob the Cates house, knowing that there was a safe inside and knowing that Back would be home.

"He had a choice; Justin didn't have a choice," Sandy Cates, Back's mother, said of Myers. "He could have stopped it. He could have called 911. He could have stepped in. He could have helped save Justin, but he didn't. Again, that was his choice."

And for that, Back's parents believe Myers should die.

As for Mosley, they believe he earned the right to keep his life after he showed remorse.

"He did own up to what he did," Sandy Cates said. "That's the difference."

Although Oda, the judge, called the plea agreement with Mosley "troublesome," he wrote that Myers "does not escape culpability just because Mosley cannot be put to death for his crimes."

Fornshell said the plea deal was a risk that prosecutors were willing to take and believes it was the "best strategic decision."

"Because we believe strongly that Tim [Mosley] providing that information helped the jury better understand what the whole case was about, what Tim's role was and what Austin's role was," Fornshell said.

McKenna, Myers's attorney, said that in cases involving plea deals, the less problematic defendant is usually the one who testifies against the more blameworthy one.

He argues that in this case, the level of culpability is the same.

Myers had just turned 19 at the time of the murder. Mosley was also 19.

"Teens' brain simply aren't developed enough to understand what's happening to them to get the death penalty," McKenna said.

Oda agreed, citing statements that Myers made to the jury:

"If you kill me, it won't fix anything."

"It won't bother."

"It won't hurt me."

"I won't feel anything."

Those are the words of a child, the judge wrote.

"The defendant does not understand how precious life is - at his age, it would be virtually impossible for him to have such an appreciation."

Executions of people who did not directly kill the victim are extremely rare.

The Death Penalty Information Center lists just 10 such instances that didn't involve contract killings. An additional 11 involve contract killings, in which the person who was executed had contracted to have the victim killed.

None of those executions were in Ohio, which has executed 53 people since 1976.

If executed, Myers would be the youngest defendant to be put to death in the state.

For Mark and Sandy Cates, justice was served when Myers was sentenced to death - and efforts to reverse that sentence only brings them back to the worst moment of their lives.

"We need closure," Sandy Cates said. "Every time there's an appeal, every time there's something legal coming up, literally, it tears your heart out."

"We've lost Justin over and over and over and over," she added. "And we're never going to have any closure until all appeals are done. We need it to be over at some point."

Source: The Washington Post, Kristine Guerra, via Napa Valley Register, December 25, 2016

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