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Wednesday, March 28, 2018

The Head of the Cuyahoga County Prosecutor's Office Conviction Integrity Unit On Ru-El Sailor and Investigating Innocence Claims

Posted By on Wed, Mar 28, 2018 at 4:41 PM

click to enlarge RUSSELL TYE (MIDDLE) WITH MIKE O'MALLEY AT TODAY'S HEARING TO VACATE THE MURDER CONVICTION OF RU-EL SAILOR
  • Russell Tye (middle) with Mike O'Malley at today's hearing to vacate the murder conviction of Ru-El Sailor

After a long review by the Cuyahoga County Prosecutor's Office Conviction Integrity Unit, Ru-El Sailor is a free man. His 2003 murder conviction was vacated this afternoon following a joint motion from the state and his attorneys that was accepted by Judge Nancy McDonnell.

The CIU, headed since January 2017 by Russell Tye, was a cornerstone of Prosecutor Mike O'Malley's campaign, and for good reason. The CIU had languished under Tim McGinty, which was curious considering that he created it. Sailor had completed two applications for the unit to review his conviction. Once in 2014. Once in 2016. Each time he was denied, once in a one-sentence letter. When Scene first wrote about Sailor's case in the summer of 2016, a spokesperson for McGinty said it would reconsider Sailor's application. If it did, it didn't do it seriously.



After O'Malley took office in 2017, Tye began investigating the case with his team. On top of the amazing work done by Sailor's attorney Kimberly Kendall Corral, Tye's team got interviews with two key witnesses — one who was supposed to testify at trial but left town instead (William Sizemore), and one who said he couldn't identify Sailor at trial only to change his mind. That laid the groundwork for today's decision.

Scene sat down with Tye this morning to talk about the case and the changes he's made to the CIU since taking over.

So tell me about the last 15 months.

RT: It's been a very, very extensive investigation. I came onboard in January 2017 and started the investigation at the end of January 2017. And we just went through it, just turned over every rock, sought out to interview as many people as we could. I looked at the complete file, everything, and with the help of my unit and the investigators, we just kept chugging along.

How'd you find William Sizemore. (Sizemore was the person with Cordell Hubbard the night of the shooting, not Sailor. Sizemore was subpoenaed to testify at the original trial but didn't appear. He then basically disappeared.)

RT: Through very hard work and persistence.

I get why he might not have responded back in the day — you're part of what happened but not indicted for it. And from what I read in the CIU's report, he had a lot of life happen to him since then.

RT: Yes he did. It's not uncommon for people not to want to be involved in the situation, especially when you have someone you witnessed be killed practically in front of you. It's not uncommon for people to sort of disappear and not want to be involved, even if they're good-intended, because of a variety of reasons. That's understandable to me at least, to some degree. What's not understandable to me is that information was never shared with anyone from our standpoint, from the state's standpoint. It's troubling that no one knew from our end of his situation, in terms of what his story was. And unfortunately that's because he took off and life happened to him in a very dramatic fashion.

We looked for him for awhile. And it just happened that stars aligned for us and we were blessed the day we went out — well, one of the days we went out — and happened to speak to one of his friends at an address that we thought he might have lived at. Even when he came back to Cleveland he bounced around and didn't want part of anything. You can search out people's relatives, you can ask them to pass along messages, or they'll say they don't know where someone is, that's the runaround you have to deal with. But we knocked on his friend's door. He said he didn't live there. So I casually kind of convinced him. I told him we don't come with bad intentions, we just are curious what information he might have, that we weren't there to make his life miserable. I just want to talk to him and find out what he knows. And I think because of that conversation he felt comfortable enough, even though he wouldn't share an address or phone number with us, to call Sizemore, because within five minutes I got a call from him and to his credit he came down to talk to us that same day.

It's amazing how many people knew the truth of what happened that night not long after it all happened and here we are 15 years later.

RT: You have to remember, the murder is in November 2002 and the trial is in May 2003, so the rapid succession of events and trial, you're talking about a six month period. Back in 2002, it wasn't uncommon for murder cases to go to trial after six months. Now, you're talking more like 12 months. Things move fast sometimes, and it's a simple investigation, and sometimes it's not. I think the Cleveland Police did the best they could with the information they had, and I think we did the best we could as an office with the information we had. Ru-El's testimony at trial, really, solidified his fate up until now. (Sailor testified he was with Cordell all evening. He pleaded guilty to perjury and obstruction of justice today and was sentenced by Judge Nancy McDonnell to five years on each count, to be served consecutively. He's already served 15, of course, and was released. He will have to report to a parole officer.)

When Sailor first talked to our reporter, I remember him talking about the value of loyalty and how Cordell was his best friend and he was just trying to do right by him. Maybe he thought he'd help him out without realizing he was going to get roped in himself, thinking he could save his pal and go on his own way.

RT: That's a good read of things.

Is there any reason his application to the Conviction Integrity Unit should have been denied twice (in 2014 and 2016)? Obviously it was worth looking into, we can see that now.

RT: I wasn't here so I don't know the entire process they went through. I can tell you based on the way the policy was designed at the time, if you give a contrary story now, say 10 years later, to what your position at trial was, it can be viewed suspiciously. It can be viewed that you're just making up something to appear in a better light with us and you're not credible. You couple that with a case where the person has committed perjury on the stand and that's in the back of your mind as a unit, you ask why should we believe you now. That's not a justification or excuse for the first process, but I can tell you it probably played a critical point in the analysis.

And that policy is different now.

RT: Yeah, I changed the policy; I made it more expansive in terms of what types of claims we deal with — not just actual innocence claims. And I felt that in all my research looking at CIUs across the nation, most of them just do actual innocence claims, but there are some that consider other claims, like over-charging. And when I say that, maybe you're convicted of something but looking at the actual factual scenario you shouldn't be convicted of murder, it should be manslaughter. When you look at that type of situation, it's only fair we open up ours beyond actual innocence claims. If your claim is so compelling it should require a review at least, because a lot of these cases, we're the last resort. Your case has already worked its way through the appeal process and the post conviction process and really this is the last stop.

It's something we try to impress upon the reader in stories like this. If there's no new evidence, especially DNA evidence, and you're mounting the same defense you did at your original trial, you're going to be told no by judges.

RT: And "no" without a hearing. That's critical. But we should be taking a fresh look at cases if it warrants it, if it gets past the first hurdle. We should look at these cases... we're not the 13th juror, okay? But in the same vein, we are critical at what we look at. Justice requires that if you did the crime you should be imprisoned, if that's what the judge saw fit. At the same time, if there's compelling evidence, we should look at it seriously. We're mindful of what the appellate court said, and what happened during the original trial, at the same time we look at the cases with a fresh set of eyes.

Is that motivated by feeling like the last resort?

RT: I think it deserves it. My background... I started prosecuting as a very young lawyer, coming fresh out of law school. I did four and a half years then was a defense attorney for almost sixteen and a half years, and now I'm back on this side of the fence. My perspective is completely different from a lot of people that hold this office. I think it was wise for Prosecutor O'Malley to reach out in that regard, because I can have a balanced approach at these things. I know what I'm looking for when looking at evidence and know the pitfalls from two perspectives.

What's the CIU's caseload now?

RT: It's interesting you ask. There are about 45 pending cases we're reviewing, so to speak. We're going through those, we can't slight any of them, and it's very tedious. This case took us 15 months. One of the criticisms is, oh, it takes so long, well I think the public deserves justice regardless. We have to be mindful these cases have been through the process and in some of them... it used to be, if you plead guilty, your case isn't reviewable. Under most CIUs across the country that's the case. You had an attorney, you pleaded guilty, and it makes sense, but not all the time. You can see from our East Cleveland cases that's true. The vast majority of those guys pleaded guilty, and we reviewed it because it would be, in a term for 2018, compelling. And in doing so we found compelling reasons that two detectives and a sergeant had gone rogue, so to speak. And now they're in federal prison. So you have to look at the propriety of the conviction, even if they plead guilty. We all know, and I know all too well, that people plead guilty for various reasons. I looked at that and said we're taking that out of the policy.

People plead on bad advice, because a trial might be going poorly...

RT: People can't afford lawyers, or to escape a higher penalty. You name it.

What's the CIU staffing like for those 45 cases?

RT: We reach out to various units in our office because we have to. There's myself (Tye is also Criminal Division Chief and an active trial lawyer), our coordinator, we have a paralegal, and we have access to investigators. Obviously, one big thing on my to-do list is to get more funding. I would like to  have a staff, several attorneys who are completely dedicated to the unit and not necessarily utilize other APAs. In a perfect world I'd have a fully staffed unit like Brooklyn. They have quite a few that are just in the CIU. That's in a perfect world. Give me half of that and I can get a lot more done.

Where can that money come from? Certainly not from the county; they cut the overall office budget $1.5 million last year.

RT: We're looking at grant opportunities. We're steadfast in seeking out money from any place we can for our unit.

So today's a good day though, with Ru-El.

RT: Great day.

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