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February 15, 2012

Extended account of Ohio justice's capital punishment change of heart

The AP has this notable new piece headlined "US justice rejects death penalty law he wrote," which provides background on an interesting aspect of Buckeye capital justice. Here are excerpts:

As a young state senator 30 years ago, Paul Pfeifer helped write Ohio's death penalty law. Today, as the senior member of the state Supreme Court, he's trying to eliminate it.

It's not uncommon for sitting judges to change their mind on the death penalty — U.S. Supreme Court Justice Harry Blackmun famously said in 1994 he would no longer "tinker with the machinery of death" — but Pfeifer may be the only one to argue so ardently against a capital punishment law he himself created, and yet continue to rule on death penalty cases.

"I have concluded that the death sentence makes no sense to me at this point when you can have life without the possibility of parole," Pfeifer said in his most recent public comments, testifying in December in favor a bill to abolish Ohio's law. "I don't see what society gains from that....

At least two county prosecutors say Pfeifer should stop ruling on death sentences, including Hamilton County prosecutor Joe Deters, who said that Pfeifer's actions were inappropriate. "It gives rise to a credible inference that he cannot be fair to both sides," Deters said recently.

Pfeifer's position is unusual but on solid legal ground as long as he keeps his opinions out of his rulings, said Marianna Bettman, a University of Cincinnati law professor and former state appeals court judge.

Ohio has 148 inmates on death row. Executions are temporarily on hold while federal courts review the state's lethal injection procedures, but that delay is not expected to last forever. The Democrat-sponsored bill to abolish the death penalty has little chance of passing....

In January 2011, Pfeifer made his strongest statements to date, calling on Kasich to empty death row. Pfeifer says he's required as a judge to take positions to make laws better, hence his current stand. He's also required to rule according to the law and the Constitution, which he says he does. Ohio Supreme Court Chief Justice Maureen O'Connor says she's comfortable Pfeifer is following the law and not showing bias.

Since 2001, Pfeifer has written the majority opinion upholding death sentences in five cases, dissented in two others, and upheld death sentences while disagreeing on aspects of the decision in four other cases. As recently as December, Pfeifer set an execution date, signing the order for a man who raped and killed his girlfriend's 3-year-old daughter.

Pfeifer's experience as a death penalty supporter turned opponent is not isolated. Gerald Kogan, a retired chief justice of the Florida Supreme Court who prosecuted death penalty cases early in his legal career, now says the death penalty should be abolished, with the possible exception of worst of the worst defendants such as Osama bin Laden or a mass serial killer.

Rudy Gerber helped write Arizona's death penalty law in the 1970s but now opposes capital punishment and represents death row defendants trying to escape the law he created. In California, Don Heller authored a 1978 ballot initiative that created the state's death penalty law. Thirty years later, with more than 700 inmates on death row, Heller has changed course and is advocating the law's demise, saying it's too prone to human error.

February 15, 2012 at 04:18 PM | Permalink

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Here's a link to an interview and call-in program this morning on WCPN in Cleveland featuring Paul Pfeifer, Alan Johnson (Dispatch reporter) and Joe Deters.

www.ideastream.org/soi/entry/45183

Posted by: Anon | Feb 15, 2012 4:23:38 PM

1. "US justice rejects death penalty law he wrote"

Isn't Pfeifer an Ohio justice, not a US justice?

2. "It's not uncommon for sitting judges to change their mind on the death penalty..."

Completely false. It's uncommon in the extreme. Of 112 US Supreme Court justices, exactly two, Stevens and Blackmun, changed their mind while sitting. Two others, Brennan and Marshall, had always opposed it.

3. I have never heard of a sitting judge appearing on a radio or TV call-in show, of all things, to talk up his personal opinions. I would ask abolitionists to think about what their reaction would be if a judge or Justice who was hearing or was going to hear a challenge to the DP went on a call-in show to discuss how wonderful it is. Would you be on this site saying that was just fine?

4. The canons of ethics tyically require a judge to recuse himself when his impartiaity could reasonably be questioned. I will leave it to others to decide for themselves whether a judge who goes on a radio show to take one side of a hotly disputed law is a judge whose impartiality could reasonably be questioned.

Posted by: Bill Otis | Feb 15, 2012 4:45:57 PM

What a moral pygmy this Pfeifer is. He proposes to yank the rug out from under victims' families. What an arrogant ass.

Posted by: federalist | Feb 15, 2012 4:55:49 PM

Pfeifer shouldn't comment on this while he is sitting on the Court. He should resign and then complain all he wants. Fortunately, he hasn't been elevated to federal court.

Rest assured Bill Otis, if the opposite occurred as you suggest in #3, the anti-DP attorneys would be asking for recusal from all cases involving the DP.

Posted by: DaveP | Feb 15, 2012 5:25:10 PM

Judges write articles and books on legal issues, including Supreme Court justices. Did Scalia never provide "personal opinions" over the years on various legal matters, including in speeches and as part of panel discussions? I ask rhetorically.

Posted by: Joe | Feb 15, 2012 9:07:52 PM

"What a moral pygmy this Pfeifer is. He proposes to yank the rug out from under victims' families. What an arrogant ass."

I care about the victims' families. I'm sure Pfeifer cares about them, too. What I find difficult to believe is that somebody as fundamentally malevolent and vindictive as you are cares about them. You really don't think that we see through you? You use the victims' families as a convenient talking point to further your pro-death agenda. That's not because you actually care about them. It's because you think that's the line that is most likely to sell. They deserve better, but you already knew that.

Posted by: The Death Penalty Sucks. | Feb 15, 2012 11:22:45 PM

Federalist,

For what it's worth, despite my vocal and repeated support of capital punishment I don't care about the victims at all. I only care about irrevocably removing those who have rejected society from society.

Posted by: Soronel Haetir | Feb 16, 2012 12:40:39 AM

SH, TDPS, once a death sentence has been imposed, the victims' families certainly have some expectation that it will be carried out. To yank that small comfort away out of some notion that the death penalty doesn't work or whatever is cruel.

Pfeifer's willing to do that. It says a lot about his moral compass.

Posted by: federalist | Feb 16, 2012 7:02:02 AM

2012-02-16 Thu T0720 –0500

Mr. Deters' position, though well intended, is misplaced.
Ms. Bettman's position is correct (and IMLO, impeccably so☺).

Before anyone dances with me on my lay but well-researched opinion, I respectfully request that he or she carefully and understandingly {whether JD} read the history of the late Mr. Justice Felix Frankfurter, his views and his decisions on capital punishment; paying exceptionally close attention to his concurring opinion in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 plus his post decision communication with the governor of LA.

DJB
► Associate Member Ohio Association of Criminal Defense Lawyers;
► typing for me, ONLY me, and not OACDL.
————————————————————————————————————
"At least two county prosecutors say Pfeifer should stop ruling on death sentences, including Hamilton County prosecutor Joe Deters, who said that Pfeifer's actions were inappropriate. "It gives rise to a credible inference that he cannot be fair to both sides," Deters said recently.

"Pfeifer's position is unusual but on solid legal ground as long as he keeps his opinions out of his rulings, said Marianna Bettman, a University of Cincinnati law professor and former state appeals court judge."
————————————————————————————————————
SUPREME COURT OF THE UNITED STATES
329 U.S. 459
Louisiana ex rel. Francis v. Resweber
CERTIORARI TO THE SUPREME COURT OF LOUISIANA
No. 142 Argued: November 18, 1946 --- Decided: January 13, 1947

MR. JUSTICE FRANKFURTER, concurring.

Posted by: Docile Jim Brady | Feb 16, 2012 7:23:23 AM

As a writer and publicist who is looking at this issue past the Ohio state lines, this judge is correct in his statement that the Death Penalty should be abolished. Ohio's own former Attorney General, Jim Petro, who co-authored the book, 'False Justice' with his wife Nancy, has MORE than uncovered the flaws within the system which is sending innocent people to death row.

Thankfully, because of their due diligence, combined with the efforts of The Innocence Project, these wrongs are slowly being turned into rights - but not before these individuals have lost countless years and decades of their lives behind bars - years they can never get back or be adequately financially compensated for.

The margin for error is great; over zealous police officers and detectives combined with prosecutors prone toward misconduct (who place more value on the 'win' over the 'truth') have permeiated the system, operating unchecked. This appears to be more prevalent in smaller, off-the-radar counties where it is easier to inflict a personal agenda in their jurisdictions, especially in counties which do not have public defenders where less educated, indigent alleged offenders are at the mercy of a manipulative system which could take days to provide them with a court appointed attorney. Miranda rights are most certainly being violated and false confessions are being secured. The local media also plays a part in this well-crafted agenda, making it virtually impossible for these individuals to get a fair trial.

Bottom line: in today's age of PhotoShop and sophisticated visual and audio editing equipment, the degree of faulty eye-witness accounts, combined with the problems (well documented in Ohio) with the integrity of DNA labs and those who work in them, who of you would feel 100 percent confident and at peace with injecting a lethal dose of life terminating chemicals into someone's vein?

Life sentences, without the possibility of parole, is the only option which allows for this margin of error. There are no 'do-over's for those innocent individuals who have been wrongfully executed.

Posted by: Loni | Feb 16, 2012 10:18:33 AM

Loni --

Could you specify any person executed in Ohio in the last fifty years who was later found by any neutral and authoritative body to have been factually innocent (i.e., not involved in the murder)?

Posted by: Bill Otis | Feb 16, 2012 12:41:41 PM

Docile Jim Brady --

If you were representing a client in a capital case, and the judge hearing the case had gone on a radio call-in show to speak as enthusiastically in favor of the death penalty as Justice Pfeifer has spoken against it, would you feel like you had a basis to file a motion seeking the judge's recusal?

Posted by: Bill Otis | Feb 16, 2012 12:47:24 PM

Loni,

Did you here the one about the innocent man who was executed based on a PhotoShop deception?

Did I say one innocent man, I meant nonagintillion wronged souls. Of course you will deign to enlighten this poor, benighted, "fundamentally malevolent and vindictive" plebeian with an example. Please do.

Posted by: Adamakis | Feb 16, 2012 1:32:32 PM

According to deathpenaltyinfo.org, since the reinstitution of the death penalty, 140 innocent prisoners have been exonerated from the death row. (No. 140, Joe D'Ambrosio from Ohio, was exonerated on January 23, 2012.) It is unknown how many of the people executed since 1976 may have been innocent. -- quote from Wikipedia --

These exonerations are almost always based on DNA evidence. DNA evidence is only available in 5-10 % of cases.

Do the math.

Innocent people are sentenced to death in this country. Innocent people have been put to death in this country, recently and repeatedly.

If you're a death penalty fan, acknowledge the foregoing, embrace it, and flush yourself down the toilet.

Posted by: Calif. Capital Defense Counsel | Feb 16, 2012 2:53:40 PM

Posted by: Calif. Capital Defense Counsel::
"It is unknown how many of the people executed since 1976 may have been innocent...

"Innocent people have been put to death in this country, recently and repeatedly."

Does the term "non se'quitur" come to mind?
---- ---- ---- ----
Posted by: Calif. Capital Defense Counsel::"If you're a death penalty fan...flush yourself down the toilet."

delusions = "beliefs or feelings that are untrue or unsupported...usually misinterpretations of events or phenomena.”

delirious aggression = "point usually followed by violent and irrational behavior that can affect others.”

Posted by: Adamakis | Feb 16, 2012 4:16:50 PM

CCDC --

"Innocent people have been put to death in this country, recently and repeatedly."

Prove it or put a lid on it. You might try to get some normal adult manners while you're at it.

Posted by: Bill Otis | Feb 16, 2012 6:11:15 PM

Bill --

Stop trying to control the conduct of other people, stop seeking to execute 16-year-old children, and stop seeking to put people in cages for voluntarily ingesting herbs and other substances.

You would never accept proof that innocent people have been put to death in this country.

But let's start with this: Do you acknowledge that well over 100 death row inmates have been exonerated based on DNA evidence in the last 30-35 years?

Posted by: Calif. Capital Defense Counsel | Feb 16, 2012 7:18:17 PM

CCDC --

"You would never accept proof that innocent people have been put to death in this country."

To the exact contrary, I will accept the final judgment of any court of record in the last 50 years, in any state or federal jurisdiction, holding that a factually innocent person has been executed in that period.

You made the claim, let's see the proof.

Posted by: Bill Otis | Feb 16, 2012 7:48:06 PM

"But let's start with this: Do you acknowledge that well over 100 death row inmates have been exonerated based on DNA evidence in the last 30-35 years?"

The figure is much lower than that for DNA exonerations. There have been over 100 death row cases where new evidence has called the accuracy of the conviction or sentence into very serious question, but the number of conclusive DNA exonerations is not that high. Still way too many, but not that many.

Posted by: The Death Penalty Sucks. | Feb 16, 2012 8:25:36 PM

The Innocence Project currently lists seventeen DNA death row exonerations-

http://www.innocenceproject.org/Content/The_Innocent_and_the_Death_Penalty.php

Just one is too many. Seventeen is way too many. You don't do our side any favors when you come out here and falsely claim that there have been over a hundred, though.

Posted by: The Death Penalty Sucks. | Feb 16, 2012 10:13:49 PM

CCDC, my aren't we getting testy? First of all, of the 140 so-called exonerated ex-death row inmates, you do realize, of course, that some of them actually did it. To the extent that's the case, then the system's procedural liberality is being used against it. But hey, sophistry is nothing new for you guys. Second, if you're going to lay the mythical innocent person being executed at my door, well, you can accept the moral responsibility for those killed by those who should have been executed, e.g., the six victims of Kenneth Macduff. The only difference, of course, is that those people actually died. Apparently, though, those victims are irrelevant to your calculus.

The point, of course, is that we live in a human world. Understanding that means that the arguments that capital punishment supporters need to own a hypothetical mistaken execution is akin to saying that supporting a police force means you own every mistaken shooting. I guess it's true, but it really doesn't advance the ball very much.

I notice that you don't make too many legal arguments anymore. Is that because the half-wit has consistently smacked you around?

Personally, I like to see hard looks taken at legitimate cases of innocence. I think it's good for the system. Criminology classes should teach case studies on mistaken convictions etc. I will note, of course, that all of the resources wasted on the utterly silly extra-constitutional death penalty code are resources not spent on improving guilt-innocence determinations. Where's the morality in that?

I also note that you think nothing of yanking the rug out from underneath victims' families. The statement that the death penalty is simply wrong does not address the upsetting of the legitimate interests of victims' families.

What's amazing to me is that you apparently think yourself erudite. You're not.

Posted by: federalist | Feb 16, 2012 10:19:18 PM

TDPS --

You have shown before that you are a principled person, and you do so again today.

Wrong on the DP, but principled. Since everyone is going to be wrong about one thing or another, principled is more important.

Posted by: Bill Otis | Feb 16, 2012 11:20:40 PM

federalist --

The idea -- or more correctly, the fact -- that innocent people have been killed because we did not execute a killer when we could and should have is just not going to make it into CCDC's head.

It's normally considered a criticism to say that someone's thinking is black and white. But that could not be said of CCDC's thinking, because he never even gets to the "white" part.

The idea that someone could in good faith support the DP just never gets through to him -- even though a huge majority of this country's people, and the Supreme Court, and every President, think exactly that. Thus he feels perfectly at ease in calling good and thoughtful people like you, Kent, alpino, guest, TarlsQtr, mjs, DaveP and many others "bloodlusters" and "savages," and snears that we should all flush ourselves down the toilet.

If he ever experiences a moment of evanescent maturity in which he has second thoughts about behaving this way, he never lets on. I strongly suspect there are no such moments. He views his certitude as a license to act in ways that would make a misbehaving seventh grader blush.

Although the MacDuff case you mention is the most ghastly modern instance of innocent lives thrown away because we did not execute the (multiple) killer when we should have, the best documented instance is that of Clarence Ray Allen, who orchestrated the murders of three people while serving his life sentence for a previous capital murder. The Ninth Circuit -- yes, THAT Ninth Circuit -- eventually had enough, and allowed Allen to meet his fate the second time around. The closing paragraph of its unanimous ruling is devastating:

"Evidence of Allen's guilt is overwhelming. Given the nature of his crimes, sentencing him to another life term would achieve none of the traditional purposes underlying punishment. Allen continues to pose a threat to society, indeed to those very persons who testified against him in the Fran's Market triple-murder trial here at issue, and has proven that he is beyond rehabilitation. He has shown himself more than capable of arranging murders from behind bars. If the death penalty is to serve any purpose at all, it is to prevent the very sort of murderous conduct for which Allen was convicted."

Allen v. Woodford, 395 F. 3d 979, 1019 (9th Cir. 2005).

The reason CCDC is not going to acknowledge that innocent people have been murdered because we FAILED to execute their killers for previous murders is not that it hasn't happened. He knows full well it happened.

The reason is that he simply lacks the honesty to admit it, and the courage to come to terms with its implications for abolitionism.

Posted by: Bill Otis | Feb 17, 2012 12:00:44 AM

The Death Penalty Sucks: A list of 140 death row exonerees is posted at: http://m.deathpenaltyinfo.org/innocence-list-those-freed-death-row.

Bill: I will "prove it" by cross-examining you.

Let's start, again, with this question: Do you acknowledge that, over the last 30-35 years, there have been well over 100 death-row exonerations in this country?

By the way, Bill, were you dressed up as an ICE agent in Long Beach last night?

Posted by: Calif. Capital Defense Counsel | Feb 17, 2012 11:27:48 AM

CCDC --

"By the way, Bill, were you dressed up as an ICE agent in Long Beach last night?"

For those who don't know, an ICE supervisor was shot and wounded last night by a subordinate in an apparent workplace argument. The subordinate was then shot and killed by another ICE agent before he could get off more rounds. CCDC thinks this is the stuff of jokes.

Let me ask you directly, CCDC, if you were posting under your real name, is this the way you would behave?

Posted by: Bill Otis | Feb 17, 2012 12:17:56 PM

Bill ---

I think our government is a joke.

I believe there is more corruption within government than without.

I think there is more corruption within prosecutorial agencies than within other segments of the legal community.

I think George W. Bush and Barack Obama are both culpable of murder, torture, and numerous other felonies.

I think government stooges like you pose a grave danger to our society and our liberty.

This case in Long Beach appears to be an example. As I understand it, some ICE agent (i.e., an armed government stooge with a badge) went on a shooting spree in a government building last night.

Government and government agents cannot be trusted.

The death penalty is administered by government and government agents. You trust government. I don't.

Posted by: Calif. Capital Defense Counsel | Feb 17, 2012 1:18:13 PM

Bill -

Why do you refuse to be cross-examined? You demanded that I prove that you and your fellow government stooges have executed innocent people. I will gladly oblige you by cross-examining you.

Posted by: Calif. Capital Defense Counsel | Feb 17, 2012 1:19:57 PM

CCDC --

It is not up to me to furnish the proof -- if there were any -- of propositions YOU assert. I will nonetheless answer the question you asked if you first answer this: Within the last 24 hours, you have said that DP supporters should flush themselves down the toilet. Now you say that Bush and Obama are guilty of murder and numerous other felonies. You make light of the shooting death of an ICE agent last night, snickeringly asking if I was "dressed up" as one of them.

Is this the way you would behave if you were posting under your real name?

Posted by: Bill Otis | Feb 17, 2012 1:37:24 PM

I think the fascinating twist for Pfeiffer is that he regularly upholds the death penalty and has recently signed death warrants when the Chief has had to recuse herself. The more challenging question is what would you do if you had a judge who went on the radio to support the death penalty but had sentenced some defendants to death and others to LWOP finding that, as a matter of law, the aggravating factors did not outweigh the mitigiation presented.

Pfeiffer has demonstrated that he can follow the law in these cases. But is that enough? I don't know because this doesn't happen very often.

Posted by: Robert Barnhart | Feb 17, 2012 2:41:02 PM

Bill, I am going to stop responding to CCDC. It's gotten to the point of diminishing returns. The guy's swallowed some DailyKos Kool-aid, and it's simply tiresome to respond to such blog diarrhea.

Posted by: federalist | Feb 17, 2012 2:41:24 PM

Bill & Federalist -

You two are perfect for one another in your support of State executions of 16-year-old girls.

Bill is low-level apparatchik, fully supportive of the government's unjust wars, e.g., the drug war, the Iraq War, etc. Federalist is his apple-polishing flunky.

With confused statists like the two of you running around, it's no wonder that parts of our country keep company with the enlightened regimes of China and Iran in maintaining the death penalty.

Posted by: Calif. Capital Defense Counsel | Feb 17, 2012 3:23:58 PM

CCDC

as long as we are discussing Ohio, read the 6th Circuit's opinion in Fears v Bagley issued today. Right up your alley regarding your hatred of AEDPA.

Posted by: DaveP | Feb 17, 2012 4:10:28 PM

CCDC --

Since you didn't answer, I will ask again.

Within the last 24 hours, you have said that DP supporters should flush themselves down the toilet. Now you say that Bush and Obama are guilty of murder and numerous other felonies. You make light of the shooting death of an ICE agent last night, snickeringly asking if I was "dressed up" as one of them.

Is this the way you would behave if you were posting under your real name?

Posted by: Bill Otis | Feb 17, 2012 4:14:51 PM

federalist --

Ah, but you see, their diarrhea is valuable, because it shows the world what they regard as "argument."

Nothing impeaches the case for X as effectively as the foolishness, evasion and venom of those speaking most loudly for X.

Posted by: Bill Otis | Feb 17, 2012 4:24:47 PM

DaveP, the panel isn't exactly state-friendly. Maybe Fears will be executed sometime in 2015.

Posted by: federalist | Feb 17, 2012 8:15:36 PM

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