Clarence Carter admits he beat and stomped Johnny Allen to death 21 years ago while the two were inmates at the Hamilton County Justice Center.
But Carter says Allen died during a fight that got out of control, not because he intended to kill him.
Carter's lawyers told a federal appeals court Wednesday that evidence discovered after Carter's conviction supports his claim and could save him from the death sentence he received two decades ago.
They say a key witness changed his story years after Carter's murder trial when he told investigators he didn't really see who started the fight in 1988, despite testifying earlier that he had seen Carter "sucker punch" Allen and then beat him for more than 20 minutes.
The distinction is important, they say, because prosecutors used the testimony to show Carter intended to kill Allen with "prior calculation and design," which made him eligible for the death penalty.
"No reasonable juror would have convicted Carter without evidence of a sucker punch," said Joe Wilhelm, one of Carter's lawyers.
But the panel of three judges from the U.S. 6th Circuit Court of Appeals was skeptical about whether the witness really changed his story and, if he did, whether it would have made any difference to jurors.
They said the witness, a fellow inmate named Calvin Steele, claimed years later that he "couldn't remember" who started the fight and that he had testified "truthfully" during the trial.
The judges also noted that other evidence from the case could have given jurors reason to believe Carter had acted with prior calculation. That evidence includes testimony from several witnesses about how Carter beat, kicked and punched Allen repeatedly and, on two occasions, took a break to mop blood off his shoes.
"When he stops twice to wipe blood off his shoes, they might find that to be prior calculation," said Judge Danny Boggs.
Thomas Madden, a lawyer with the Ohio Attorney General's office, said Steele may have attempted to change his story in 1994 after some of Carter's relatives threatened him in prison. When charged with perjury by prosecutors, Steele backed off those comments and said he stood by his trial testimony.
Madden said Steele's subsequent statements about being unable to remember who started the fight have more to do with the passage of six years since the trial than with a genuine recantation of his testimony.
"He can't remember everything about the fight, but he does remember testifying truthfully," Madden said.
Carter is among the longest-serving inmates from Hamilton County on Ohio's Death Row. He was in jail at the time of Allen's death because of a previous, unrelated murder conviction.
The 6th Circuit could rule on Carter's appeal within the next few months.
Note: Carter had an execution date of July 10, 2007 but it was stayed due to Carter joining Cooey's lawsuit against LI.
Note 2: Carter was Denied a COA by the 6th Circuit dated 10/30/09.
Opinion is here:http://www.ca6.uscourts.gov/opinions.pdf/09a0378p-06.pdf