William Zuern

Case record: William Zuern

Overview

William G. Zuern was executed by lethal injection in Ohio on June 8, 2004. He was convicted of the aggravated murder of jail officer Phillip Pence at the Community Correctional Institute in Hamilton County. At the time of the stabbing, Zuern was confined awaiting trial at the Community Correctional Institution, a Civil War-era prison known as “the Workhouse.”

Zuern also received a life sentence after a guilty plea related to the fatal shooting of Gregory Earls.

Timeline

• May 14, 1984 — William G. Zuern was incarcerated at the Community Correctional Institute (“CCI”) in Hamilton County, Ohio.
• June 5, 1984 to June 7, 1984 — Zuern was observed by other inmates fashioning a weapon (a shank) from a mop bucket handle.
• June 8, 1984 — Zuern had a conversation with inmate Wayne C. Lewis expressing hostility toward correctional officers for failing to give him his full five minutes of telephone time; Lewis also observed Zuern sharpening a straightened portion of a metal bucket hook over the course of three days.
• June 9, 1984 — CCI officers searched Zuern’s cell; Zuern lunged at Phillip Pence and stabbed him in the chest with a metal shank; Pence died after being taken to a nearby hospital.
• June 11, 1984 — A Hamilton County grand jury indicted Zuern for aggravated murder of Phillip Pence.
• October 18, 1984 — The trial court filed its sentencing opinion and imposed the sentence of death.
• October 5, 1984 — Zuern was admitted to the institution.
• January 1979 — A victim took an undercover police officer to Zuern’s father’s residence; a narcotics buy resulted, and Zuern’s father was subsequently convicted and given probation.
• May 6, 1979 — The victim and Zuern got into a fight in the yard that started with a confrontation by Zuern.
• May 12, 1983 — Zuern shot a victim after a short conversation; the victim was pronounced dead after being transported to the hospital.
• May 25, 2004 — The Ohio Parole Board held a clemency review hearing for Zuern.
• May 28, 2004 — The Adult Parole Authority submitted the clemency report and recommendation to the Governor.
• June 8, 2004 — Ohio set an execution date; federal court proceedings resulted in execution being allowed to proceed.
• June 8, 2004 (10:04 a.m.) — Zuern was pronounced dead by injection.

The offence

Murder of jail officer Phillip Pence (aggravated murder)

At the Community Correctional Institute in Hamilton County, Ohio, officers arrived to search Zuern’s cell. Zuern was found lying naked in his bunk. Officer Pence ordered Zuern to get to his feet, and Pence unlocked the cell door and told Zuern to come out and put his hands against the wall. Zuern then lunged at Pence and stabbed him in the chest with a metal shank.

Authorities recovered the weapon used by Zuern. It was described as a long dagger-like piece of metal approximately seven inches long, with one end sharpened to a point and the other curved into a loop. An autopsy determined that death occurred as a result of the stab wound to the chest which penetrated Pence’s heart. Pence died despite efforts to save his life.

Alleged context for the search

Zuern had expressed hostility toward corrections officers regarding not receiving his full five minutes of telephone time. Wayne C. Lewis described that he had observed Zuern sharpening a straightened portion of a metal bucket hook over the course of three days and that Lewis informed a corrections officer that Zuern had a knife or a shank. Lewis was described as having a conversation with Zuern in the latter part of May 1984 in which Zuern expressed the hostility.

In federal proceedings, an inmate Loyal Hearst informed Deputy Kenneth Schweinefuss that Hearst and Zuern had argued on 6-8-84, that Zuern stated he was going to kill Hearst the first chance he got, and that Hearst also stated that Zuern had a homemade knife which he had sharpened on his cell floor.

A tip from another inmate was also described as reaching officers before they searched Zuern’s cell.

Investigation

Authorities ordered searches of multiple cells to recover the weapon after information was provided regarding a knife or shank. On June 9, 1984, officers ordered to search Zuern’s cell found Zuern lying naked in his bunk and later recovered a metal shank described as approximately seven inches long.

Following the stabbing, Pence was rushed to a nearby hospital, and an autopsy identified the stab wound as the cause of death.

Arrest / custody

Zuern was incarcerated at the Community Correctional Institute on May 14, 1984, in lieu of a $1,000 bond. He remained confined awaiting trial at the Community Correctional Institution and was the sole occupant of his cell in a section of the institution designated for individuals charged with serious crimes or in special status.

Trial

Charges and indictment

Zuern was indicted for purposely causing the death of another with prior calculation and design in violation of R.C. 2903.01. The indictment included three specifications:

1. The defendant was a prisoner in a detention facility as specified in R.C. 2929.04(A)(4).
2. The victim was a peace officer whom the defendant knew to be such, and at the time of the offense the victim was engaged in his duties as a peace officer as specified in R.C. 2929.04(A)(6).
3. The offense was committed while the victim was a peace officer, whom the defendant knew to be such, and it was the defendant’s specific purpose to kill a peace officer as specified in R.C. 2929.04(A)(6).

Plea, jury, and verdict

The clemency materials listed the plea as “Not guilty” and the verdict as “Guilty to indictment.” The record also described a jury trial where Zuern was found guilty of aggravated murder including all three specifications. Zuern waived the mitigation hearing which permitted the jury to consider all aggravating circumstances.

Sentencing

Death sentence

After the mitigation phase, the jury recommended that the sentence of death be imposed. The trial court found that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt and imposed the sentence of death.

In the direct-appeal record excerpt, the Ohio Court of Appeals affirmed Zuern’s conviction and sentence, finding that the aggravating circumstances outweighed mitigating factors beyond a reasonable doubt and that the death sentence was neither excessive nor disproportionate to penalties imposed in similar cases.

Appeals

Direct appeal and Ohio Supreme Court

Zuern’s conviction and sentence were appealed and affirmed by the Ohio Supreme Court in 1987.

The clemency report excerpt describes that two judges dissented on grounds of a prejudicial statement made by a prosecution witness in front of the jury. The witness was a fellow inmate and repeated a conversation he said he had with a jail guard shortly before the stabbing. The statement attributed to the witness was: “He is crazy, man, he is in here for murder, and he won't hesitate to do it again”.

The dissenting judges wrote they could not “imagine anything more harmful or inflammatory in character than testimony of this nature… [Zuern] was denied fundamental due process of law and a fair trial by his peers and a second trial should be granted”.

The defense had called for a mistrial, and the judge denied it.

Mandamus regarding investigative records

Zuern sought a writ of mandamus directing the Sheriff to disclose investigative records pertaining to the homicide of Deputy Sheriff Phillip Pence. The Sheriff identified twenty-four documents in his investigative file and refused to disclose seventeen. The Sheriff argued that the refused documents were excepted as trial-preparation records.

The appellate court ordered that a writ of mandamus issue and instructed that the documents filed under seal be returned to the respondents and that respondents proceed to afford full access to them as ordered.

Post-conviction relief

Zuern appealed from the order granting summary judgment to the state and dismissing his petition for post-conviction relief brought pursuant to R.C. 2953.21. The appellate court affirmed the trial court’s dismissal, concluding none of Zuern’s assignments of error was well taken.

Federal habeas corpus and Brady issue

In federal appellate proceedings, the Sixth Circuit described that:

• the prosecution failed to turn over a memorandum from Schweinefuss,
• a witness (Lewis) improperly blurted out: “[Zuern] is in here for murder, and he won't hesitate to do it again”.
• a juror overheard a television broadcast about Zuern’s case.

The Sixth Circuit stated it reversed the district court’s grant of habeas corpus based on the alleged Brady violation, and it affirmed the denial of habeas corpus on other claims, including claims of insufficiency of the evidence, prejudicial conduct by a witness, and juror misconduct.

The Sixth Circuit included the memorandum text:

[On June 9, 1984] Inmate Loyal Hearst called me to his cell and stated that he and William Zuern had an argument on 6-8-84 and that Zuern stated he was going to kill him the first chance he got. The inmate Hearst also stated that Zuern had in his possession a homemade knife which he had sharpened on his cell floor.

Execution

Execution setting and procedures

Zuern was transported to the death chamber at the Southern Ohio Correctional Facility in Lucasville. A warden asked Zuern: “Mr. Zuern, do you have any last statement you would like to make?” Zuern responded: “Nope”.

Zuern was strapped to a padded table and technicians placed shunts into both of his outstretched arms. The execution team began injecting lethal drugs, described as including pancuronium bromide to stop breathing and potassium chloride to stop heartbeat. Witnesses were led back through a courtyard after Zuern was pronounced dead, and a black Cadillac hearse awaited.

At 9:58 a.m. the secret command to begin injecting the drugs was given. The curtain was reopened after a quick examination and the warden stated: “Time of death 10:04 a.m.”

Last hours and behaviour

In the clemency and related accounts, Zuern was described as spending his final hours alone and refusing to see his two sisters, Ruby Simpkins and Ester Zuern. He refused a shower. He declined to communicate with the preparation team. He was described as stuffing toilet paper in his ears to block out prison staff.

At one point, Zuern removed the paper from his ears and asked a guard: “What time does all of this start?”

When asked if he had any last words before execution, Zuern said: “Nope.”

It was described that he declined to choose anyone to witness his death and did not have spiritual adviser access.

Drugs and timing

The execution accounts described pancuronium bromide and potassium chloride being administered and described his breathing and appearance changes during injection. He was pronounced dead at 10:04 a.m.

Other victim(s) and related conviction (life sentence)

Gregory Earls (life sentence)

Zuern was also serving a life prison term for a guilty plea to fatally shooting Gregory Earls. In the clemency materials, Gregory Earls was listed as the victim in “OFFENSE CASE #B841776.”

The clemency report excerpt described that in January 1979 the victim took an undercover police officer to Zuern’s father’s residence, after which the father was convicted and given probation. In May 1979 the victim and Zuern were incarcerated at the Lebanon Correctional Institution, and on May 6, 1979 a fight occurred in the yard that started with a confrontation by Zuern. The victim was paroled and Zuern was released due to his sentence expiring.

On 5/12/83 at approximately 12:40 a.m., Zuern was at a friend’s house socializing when he saw the victim get out of a car. The victim started walking toward Zuern and Zuern started yelling. After a short conversation, Zuern drew a revolver from the back of his pants, pointed it at the victim’s chest, and fired one shot. The victim staggered backward, and Zuern fired a few more shots. The victim was transported to the hospital where he was pronounced dead.

On November 19, 1984 Zuern pled to the indictment of Aggravated Murder, and the sentence listed in clemency materials was a life sentence.

Clemency proceedings

Parole Board hearing and participants

The clemency report listed a “DATE OF MEETING: May 25, 2004” and “Date of Meeting: May 25, 2004” with “Death Penalty Clemency Minutes of the special meeting of the Adult Parole Authority held at 10:30 Alum Creek Drive Columbus, Ohio 43205.” The report described a clemency review hearing with nine members of the Ohio Parole Board participating.

The clemency report described that there were no participants present on behalf of the defendant. The state participants listed were Assistant Hamilton County Prosecutor Ronald Springman, Assistant Attorney General Charles Willie, and Assistant Attorney General Tim Pritchard. The report also stated that Mr. Gary Roush, a friend and former co-worker of the victim, was present.

The report also stated that Zuern elected not to be interviewed by a member of the Board. The only information received from Zuern’s counsel was a letter dated May 21, 2004 from attorney Kathleen McGarry stating defense counsel decided not to participate in the hearing and that it was their belief that Zuern would not want them to initiate clemency proceedings or appear on his behalf, and therefore no request for clemency was made and no mitigatory information presented.

State arguments in opposition to clemency

The clemency report listed arguments offered in opposition to executive clemency, including:

• that Zuern committed the offense for which he received the death penalty,
• that Zuern disputed only prior calculation and design at trial,
• that Zuern surreptitiously obtained the weapon and took days to develop it,
• that Zuern knew officers were going to search his cell and disrobed prior to the attempted search,
• that after stabbing Pence, Zuern remained calm and showed no remorse,
• that Zuern stated it felt good to stab someone and that “he got his nut,”
• that the trial was relatively short, uncomplicated, and straightforward,
• that the conviction and sentence were not disturbed after nearly twenty years of judicial scrutiny,
• that Zuern’s criminal history was extensive and violent and that he was incarcerated for an aggravated murder charge when he committed the aggravated murder of Phillip Pence,
• that Zuern’s institutional conduct was problematic and included other conduct violations.

The report included that former Deputy Sheriff Gary Roush appeared and spoke on behalf of Phillip Pence. The report said Roush stated the victim was only 25 years old at the time of death and described the victim’s plans and family situation. The report also stated Roush read a letter from the victim’s step sister Sherry Behler, who was described as adamantly opposed to clemency, and that approximately 44 letters in opposition were received.

Conclusion and recommendation

The clemency report concluded that Zuern’s scheduled execution date of June 8, 2004 had been stayed at the time of the report. It stated that no mitigation was offered and no request for mercy was made by Zuern.

The Ohio Parole Board unanimously recommended that executive clemency be denied in the case of William Zuern #A181-416, voting nine to zero, and that clemency was not warranted.

It also stated that the scheduled execution date was stayed at that time, and later in the accounts the stay was vacated and the execution proceeded.

Personal details and case identifiers

Identity and custody details

• Name: William Zuern (William G. Zuern)
• Gender: Male
• Race: White
• Date of birth: 12/5/58
• Age at execution: 45
• Inmate number: 181416
• County of conviction: Hamilton
• Received at DOC: 10/05/84
• Time served listed in clemency report: 235 months
• Presiding judge (clemency report): Honorable William J. Morrissey
• Prosecuting attorney (clemency report): Arthur M. Ney, Jr.

Prison and institutions mentioned

• Community Correctional Institution (“CCI”)
• Lucasville prison described as Southern Ohio Correctional Facility and where executions were carried out
• Mansfield death row prison mentioned as the facility where Zuern was held before transfer to Lucasville
• Chillicothe cemetery described as state-run and adjacent to a prison

Victim witnesses at execution

Pence’s half-sister and two co-workers who witnessed the stabbing watched the execution. Those witnesses were identified in accounts as Sherry Behler, Gary Roush, and Joe Burton.

Other details

Evidence and witnesses

The clemency and federal appellate materials described several witnesses and statements connected to the stabbing:

• Wayne C. Lewis
• Deputy Kenneth Schweinefuss (memorandum author)
• Inmate Loyal Hearst (information provider)
• Officers Joe Burton and Phillip Pence
• Juror Beulah Taylor
• Officer Ron Doyle (conversation referenced in Lewis’s testimony)

Lewis’s prejudicial statement attributed to him during trial included:

• Question: “What did you tell Officer Doyle?”
• Answer: “I told Officer Doyle, "Officer Doyle, can we talk, could we rap? I'm telling you, you know, Zuern has a shank or a knife or whatever you want to call it." I said, "He is crazy, man, he is in here for murder, and he won't hesitate to do it again."”

The trial court admonition to the jury included:

The Court: Members of the jury, you are admonished at this time that any testimony just offered was a gratuitous remark by the witness, and is excluded from your consideration as any part of the evidence in this matter.

The Sixth Circuit also included discussion of the prosecutor’s line of questioning being reasonable, that the limiting instruction was immediate, clear, and forceful, and that bad faith was absent.

Zuern’s last meal and final preparation

Accounts listed Zuern’s last dinner as mashed potatoes and gravy, lasagna, macaroni and cheese, garlic bread, corn, chocolate milk, and cherry cheese cake. Another breakfast listing included four pancakes, cereal, orange juice and milk. He was described as offered a shower but declined.

Zuern asked for the Bible be removed from his cell.

Disposal of last effects

At Zuern’s request, his last effects were to be destroyed, including: five books, a radio, a typewriter, a fan, envelopes, toiletries, hot sauce, cocoa butter and garlic butter (or garlic powder as listed among items in another account).