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December 15, 2012

Split Ohio Parole Board recommends capital clemency based on attorneys failings

As reported in this local AP article, which is headlined "Divided parole board backs clemency in killing: Past lawyers’ errors cited; Kasich will decide on execution," the Ohio Adult Parole Authority issues a notable clemency recommendation to Ohio's Governor for the next condemned killer scheduled to executed next month.   Here are the basics:

Gov. John Kasich must decide in about a month whether to spare a condemned inmate who weighs 450 pounds, and whether the inmate’s health should be part of his decision. The state parole board recommended mercy for Ronald Post yesterday based on claims raising doubts about his legal representation, not because he says he’s so fat he can’t be humanely executed.

The board rejected arguments made by Post’s attorneys that he deserves mercy because of lingering doubts about his “legal and moral guilt” in a woman’s death, but it said it couldn’t ignore perceived missteps by his lawyers.

The board’s recommendation, by a vote of 5-3, goes to Kasich, who has the final say. Post is scheduled to die on Jan. 16 for killing Elyria motel clerk Helen Vantz in a 1983 robbery.

“Post took Vantz’s life, devastating the lives of her loved ones in the process,” the board said.  But it also said a majority of its members agreed that his sentence should be commuted to life in prison without chance of parole because of omissions, missed opportunities and questionable decisions made by his previous attorneys and because that legal representation didn’t meet expectations for a death-penalty case.

Post never raised his weight issue with the board but instead is arguing in federal court on Monday that he would suffer “a torturous and lingering death” as executioners tried to find a vein or use a backup method where lethal drugs are injected directly into muscle.

Kasich can consider anything he wants, regardless of court rulings or whether a claim — in this case Post’s weight — was made as part of the clemency petition, said Dan Kobil, a Capital University law professor and expert on clemency....

Post’s current attorneys said the parole board’s recommendation pleased them. “In the nearly 30 years since his case began, Ronald Post has too often been failed by the attorneys assigned to represent him, beginning at his trial,” public defenders Joe Wilhelm and Rachel Troutman said in a statement.

Vantz’s sons, William and Michael, have said they believe Post is guilty.  William Vantz characterized Post’s obesity claim as “another way for a coward to try and get out of what debt he owes to society.”... The dissenting parole-board members said it’s clear that Post killed Vantz and that questionable moves by his attorneys don’t outweigh the circumstances of the case.

Doubt about Post’s guilt lingers because of the involvement of two other men in the shooting, Post’s attorneys argue.  Post pleaded no contest to the crime on the advice of his attorney in expectation of a life sentence, they said.  Even after his plea, he told a psychologist “he was not a murderer,” the lawyers said.

The full clemency report released yesterday by the Ohio Adult Parole Authority is available at this link. The split nature of the board's ruling provides a ready justification for any type of decision coming from Gov. Kasich, who has already commuted three death sentences to LWOP during his two years as governor to date (while also having presided over eight executions).  Governor Kasich's track record suggests he takes capital clemency decision-making very seriously, and he will have a lot of factors to chew on in this particular case.  

With a focus only politics and practicalities, I probably would be inclined to urge the Governor to commute Post's sentence to LWOP sometime before the end of this month just to make this ugly capital case go away.  The issues concerning Post's weight and the execution process ensure that this case will get (too) much attention and be subject to much litigation in the weeks leading up to the mid-January execution date.  And, with a lingering set of innocence claims and now a recommendation of clemency based on lousy lawyering, it would be easy and reasonable to justify a commutation because of the questions surrounding the fairness and accuracy of the process which led Post to be sentenced to death.  And a communitation here would likely garner more praise from Gov. Kasich's usual critics than criticisms from his usual allies.

That all said, if one's vision of retributive capital justice necessarily ecliples these kinds of practical and political concerning, then a denial of capital clemency here become an easier decision.  Because I rarely have strong retributive instinct here (or elsewhere), I tend to see these issues in more pragmatic and procedural terms.  But I certainly can understand and respect how Gov. Kasich and others might have a much different perspective.

December 15, 2012 at 03:39 PM | Permalink

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Comments

"With a focus only politics and practicalities, I probably would be inclined to urge the Governor to commute Post's sentence to LWOP sometime before the end of this month just to make this ugly capital case go away."

Ah yes, "politics and practicalities" . . . . always the instinct of the chatterers who think themselves so erudite and astute.

This piece of human waste killed a woman 30 years ago--the family has been waiting patiently. Time to send this jerk on. The family isn't supposed to get justice because some law prof is handwringing about the politics of all of this. It's amazing: the instinct of intellectuals is to manage issues according to their own sensibilities, sensibilities that are usually divorced from any hint of morality.

Posted by: federalist | Dec 15, 2012 5:42:07 PM

I couldn't agree more, federalist. He murdered a poor woman who was just doing her job nearly 30 years ago. Simply put, he deserves to die for what he did. That's the long and short of it. I hope Governor Kasich agrees.

Posted by: alpino | Dec 16, 2012 8:20:32 AM

"I probably would be inclined to urge the Governor to commute Post's sentence to LWOP sometime before the end of this month just to make this ugly capital case go away."

Of course it can also "go away" by carrying out the sentence.

"And, with a lingering set of innocence claims and now a recommendation of clemency based on lousy lawyering, it would be easy and reasonable to justify a commutation because of the questions surrounding the fairness and accuracy of the process which led Post to be sentenced to death."

There are this sort of "lingering" doubts about whether the earth is flat. "Lingering doubt" is just defense lawyer talk for its embrace of solipsism. Of course, defense solipsism is subject to cancellation without notice when defense counsel is thundering to the jury about THE REAL KILLER. When that happens, the concept of "doubt" goes straight out the window.

Posted by: Bill Otis | Dec 16, 2012 9:00:47 AM

Yes Bill. Only the true believers talk about Troy Davis anymore.

Posted by: federalist | Dec 16, 2012 10:55:35 AM

"He murdered a poor woman who was just doing her job nearly 30 years ago."

Sorry if I'm defending a "piece of human waste" ('tis the season to celebrate someone who thought a bit more about such people even when hanging on a cross next to them*), but if murdering people warrants execution, why do people support laws that only allow execution for a narrow number and when on juries only choose to apply the death penalty on a small subset and keep on electing people who pick judges and others who have a somewhat different view of things?

The one-note visceral remarks here, which would lead many who support the death penalty to feel uncomfortable, is depressing. In the real world, we have a limited number of executions for a reason, including because the majority who support the DP think "persons" are involved here, not 'pieces of waste.'

--

* See, e.g., Jesus on Death Row: The Trial of Jesus and American Capital Punishment by Mark Osler, a former federal prosecutor and "friend" (per introduction) of the author of this blog.

Posted by: Joe | Dec 16, 2012 12:21:02 PM

Thanks, Joe, for the thoughtful response and for making me eager to learn whether federalist and alpino and Bill Otis genuinely think/believe/feel/advocate

(1) that "morality" and "justice" requires that all convicted murderers must (or at least should) be executed by the state without any consideration of "politics and practicalities"

AND

(2) that all clemency decisions must (or at least should) be made by governors based on their own visions of "morality" and "justice" requires that all convicted murderers must be executed by the state without any consideration of "politics and practicalities"

The first question seeks to probe whether they consider the discretion built in to every capital punishment system in modern history to be, in federalist's words, "usually divorced from any hint of morality."

The second question seeks to probe whether they are inclined to defend mass capital commutations by former Gov Ryan and other governors who --- like the Catholic Church and other seemingly morally-inclined institutions --- reach the conclusion that allowing an execution to be carried out is, to paraphrase federalist's words, "usually divorced from any hint of morality."

I will not apologize for my instinct as an "intellectual" to bring nuance and honesty and transparency to discussions of this sort. But I am sorry when such efforts bring out the worst instincts in some commentors.

Posted by: Doug B. | Dec 16, 2012 1:47:47 PM

Joe, please spare us the maudlin stuff about Christ on the cross. It adds little to the conversation. Jesus would be a lot more appalled at the millions of abortions in the US, than the execution of Post. But I digress.

Yes, Joe, the laws are such that not every murderer gets the DP. So what? This murderer has had all of that process. And after all of that--Doug thinks that the focus should be on politics and practicality? Whatever. If Doug has his way, yet another family will be cruelly denied the justice they deserve. That's not part of the calculus. It would be one thing if the recommendation had something to do with the underlying crime, but because this piece of human trash is obese and it will, quelle horreur, force federal judges to deal with another issue, the case is "ugly"? No Doug, the case has a little bit of "hair" on it (sorry for the use of practicing lawyer slang). Big deal. And your reference to the reaction of Kasich's enemies/friends--as if that's more important than what the victim's family is going through.

And the "worst instincts" comment is so pathetic. What? Because I questioned the focus on practicality and politics?

In addition, apparently, you didn't read my comment very well. There are moral arguments against the death penalty. POlitics isn't one of them.

Posted by: federalist | Dec 16, 2012 2:32:12 PM

DAB,

You are more of a utilitarian animal than Kasich.

Posted by: anon | Dec 16, 2012 3:24:02 PM

federalist, I always try to read your comments closely, which is why I am still genuinely struggling to figure out the meaning, import and implications of your comments here. (And that is my point about "worst instincts": the tendency of many to assail the speaker rather than to engage carefully the substance of a post/comment. Despite my effort to stress that I was just working through one possible perspective on how Kasich might approach this matter, you are quick to assert that any perspective other than your own involves those with "sensibilities that are usually divorced from any hint of morality.")

Without answering my follow-up questions, you now concede that there are "moral arguments against the death penalty," but you do not explain why you assert/suggest that "politics and practicalities" are not valid moral considerations for a Governor operating within in a representative democracy with limited state resources to respond to horrible crimes and victims' suffering.

Before turning to the Post case, let me try again to understanding your views on how "morality" should inform capital clemency decisions in, say, California: Gov. Jerry Brown seems to sincerely believe state executions are immoral. Do you think he should, based on his this "morality," now just commute all California death sentences despite the recent political votes of a majority of Californians to retain the DP in the state? In making his "moral" assessment, should he ignore all practicalities and politics (such as the "practical" concerns of many in law enforcement who think limited state resources could and should be better used on more cops and prisons)?

Returning to the Post case, do you think the five votes to commute Post's sentence are "divorced from any hint of morality"? More broadly, do you think it is always immoral for a Governor to grant clemency (or even for a court to grant habeas relief) based only on concerning about effective representation rather than concerns about guilt? Kant suggested that retributive justice demands that a state execute all murderers with no exception, and your comments suggest that you would urge Kasich to adopt a Kantian approach to this decision.

As I think I made clear in my initial post, if one adopts the retributivist perspective that all killers are "human waste" deserving to die (and that the ones who escape execution should just consider themselves lucky), then the Post claim for clemency (and every other one) becomes very easy to ignore. And, as the tone of my post was meant to indicate, I would not accuse anyone who adopts such a stark perspective as lacking in any hint of morality. But I also think these clemency issues in real settings in the real world contain many political and practical dimensions that also have at least hints of morality.

Posted by: Doug B. | Dec 16, 2012 3:59:11 PM

Doug --

1. " Thanks, Joe, for the thoughtful response and for making me eager to learn whether federalist and alpino and Bill Otis genuinely think/believe/feel/advocate (1) that 'morality' and 'justice' requires that all convicted murderers must (or at least should) be executed by the state without any consideration of 'politics and practicalities'."

I doubt that you are serious in directing that question to me, since I have made it clear many times that I do not believe anything close to all convicted murderers should be executed, with or without consideration of politics and practicalities. Nor did anything in my prior post suggest otherwise.

2. ... "(2) that all clemency decisions must (or at least should) be made by governors based on their own visions of "morality" and "justice" requires that all convicted murderers must be executed by the state without any consideration of 'politics and practicalities'."

I likewise have no idea how, from my post about this one case, you came up with the idea that I think "all" clemency decisions should be made regardless of politics or practicalities (although I am happy to confess that political considerations should be very suspect, see, e.g., Marc Rich and Mel Reynolds). Could you quote the language I used suggesting that I was endorsing "all"?

3. "I will not apologize for my instinct as an 'intellectual' to bring nuance and honesty and transparency to discussions of this sort. But I am sorry when such efforts bring out the worst instincts in some commentors."

Where did I use language suggesting that one should not approach clemency with nuance, honesty or transparency? Could I see the quote?

If it's nuance you want, you're searching in the wrong place. Retentionists believe in nuance -- in allowing the jury to decide on the DP, or not, case by case, depending on the facts. It is the abolitionist side that refuses nuance, insisting that there is no case, ever, no matter what, in which the DP should be used. Do you disagree that this dogmatic refusal of nuance is, at the minimum, problematic? You should, but instead you go after federalist, alpino and me.

4. That I support going forward with the court-ordered execution of an adjudicated killer after nearly 30 years of delay is scarcely indicative of "bad instincts." If you're sliding over to the faction that views disagreement with the lenient outcome du jour as indicative, not of differing judgment but of bad faith, it's a slide you might want to reconsider.

5. There are many other things I might add, but I'll mention just one: Of course it is true that death penalty decisions involve morality. This is why a primarily cost-based argument (like the one that recently failed in California) leaves me cold. But you are simply assuming the conclusion when you imply that morality always, or even typically, cuts in favor of clemency. For example, the moral thing to do with McVeigh was execute him; it would have been immoral to spare him, particularly based on some "lingering" (translation: fictional) doubt about his guilt.

Posted by: Bill Otis | Dec 16, 2012 4:41:45 PM

Bill, my question were directed primarily to federlist's puzzling suggestion that one is "divorced from any hint of morality" if/when thinking capital clemency decisions could or should be informed by considerations of politics and practicalities. You are welcome to weigh in further on this front, but I read your recitation in your latest comment to suggest you see legitimacy (and perhaps wisdom) in sometimes considering politics and practicalities in capital clemency decision-making. (Note that when first I said "worst instincts in SOME commentors," I was referencing only federalist, not you.)

Meanwhile, you should know from my body of work on this blog that I share your disaffinity for the rigid views of death penalty abolitionists (who have, e.g., never explained to me why they think lethal self defense or even war can ever be justified if capital punishment never can be). But one aspect of rigidity that irks me coming from both sides in the capital punishment debate is the suggestion that caring about "costs" (or practicalities or politics) is inappropriate because the death penalty is a matter of life/death and "justice" and "morality."

Any effort to divorce practical realities from capital punishment debates/decisions always strikes me as silly (or sinister) because every form of public policy decision-making on serious issues --- whether involving, e.g., health care resources or drug policies or speed limits or gun control or food safety regulations or immigration policy, etc --- ultimately ends up involving some life/death dimensions and "justice" and "morality". And yet in all these other arenas, few will deny the legitimacy of "costs" (or practicalities or politics) in the decisions to be made by elected leaders within a representative democracy.

In other words, I see a lack of nuance and honesty and transparency to capital punishment discussions when folks suggest --- as the first comment by federalist suggested --- that officials are supposed to operate in a unique way in this setting. (And you are right, Bill, to note that it is abolitionists more often than retentionists who tend to make these "capital punishment exceptionalism" claims.) I think the discourse here is much more honest and productive if and when folks view capital punishment as just one of many difficult public policy issues that engage and engulf public officials in challenging and dynamic ways.

My views here do flow from the fact that, as anon notes, I am a "utilitarian animal." That is ultimately because I find more meaningful and universal the math-based premisis on which consequentialist philosophy is based than the instinct/feeling-based foundation of deontological philosophy.

My apologies to you Bill if (1) my comments mostly directed toward federalist were not sufficiently refined to make clear my target and/or (2) if I am wrong to read your latest comment as an agreement with me that sometimes politics and practicalities are valid considerations in capital clemency decision-making within a representative democracy always coping with limited resources.

Posted by: Doug B. | Dec 16, 2012 8:21:27 PM

Doug --

Not a problem. I couldn't tell your precise target. I am grateful for your providing this invaluable resource, I read it every day, and I very much admire your willingness to let a thousand flowers bloom.

And in other news, did you happen to see the Browns-Redskins game................

Posted by: Bill Otis | Dec 16, 2012 8:51:08 PM

As a former citizen of the great state of Maryland, I am more of Skins fan than a Browns fan. (Also, my folks and some siblings are big Skins fans; I like when they have an exciting team to get behind.) For hard-core trivia fans and to stay on-point here (sort of), I would also note that the Redskins have a link to death penalty jurisprudence: an infamous capital defendant who twice got to the US Supreme Court (John Paul Penry) was sent to death row for murdering the sister of Mark Moseley, the Redskins' all-time scoring leader and the only placekicker to win the NFL's MVP.

In addition, since coming to Ohio, I have adopted more of a rooting interest in the Bengals than the Browns (though some like to joke that Ohio State has the best (pro) team in the state most years). That all said, Ohio has such a modern sad-sack history in pro sports, I often find myself hoping all the local teams win so that the die-hard fans here finally get some joy in return for their perseverance.

Posted by: Doug B. | Dec 16, 2012 9:20:28 PM

Ugh. I almost didn't bother to respond. Not because I shrink from a dispute (fight seems hardly the right word when it comes to posts on a blog), but because it's so tiresome sometimes.

Here's the quote: "With a focus only politics and practicalities, I probably would be inclined to urge the Governor to commute Post's sentence to LWOP sometime before the end of this month just to make this ugly capital case go away."

Doug, even if you meant that you yourself would not focus solely on the politics and practicalities and that you were only offering a political/practical point of view (and that's hardly clear from the words you chose), the point is that ignoring the victim's family is just plain wrong. And on top of that, surely you realize that "politics" has quite a few connotations. Your post linked Kasich being praised politically and his decision. When called out, you chose a more noble connotation of politics. Neat trick. I am not going to go further--suffice it to say that I am not interested in debunking rhetorical legerdemain that comes close to intellectual dishonesty.

As for practical considerations--the idea that we should force victims' families to endure 30 years of waiting only to have the rug yanked out from under them because, quelle horreur, some judges might have to earn their pay and there may be some optics that allow defense attorneys to blow things well out of proportion and make specious claims of innocence is just nonsense on stilts. These ain't practical considerations--it's just pretext. And I am calling it out. And please spare us the concern about resources---the last-minute costs of putting this guy down are miniscule. And it's obscene, given what this family has suffered. (And by the way, Kasich has earned the contempt of all and the white-hot hatred of this victim's family.)

As for Jerry Brown--read California law--don't think Brown (another contemptible soul) can unilaterally commute death sentences. Whatever you want to say about morality---the reliance of the families cannot be excised out of the equation.

I am not going to delve further into this. I am tired, and I need to go to bed.

Posted by: federalist | Dec 18, 2012 10:57:45 PM

Hope you got some needed rest, federalist, and I am pleased you explained more fully your negative reaction to my post was based on your (peculiar) reading of my post as advocating "ignoring the victim's family." I would not accuse judges considering Post's legal claims of "ignoring the victim's family" even though the law gives judges limited authority to be concerned with the "white-hot hatred of this victim's family." Similarly, I do not think a governor's focus on politics and practicalities, in this case or others, involves a disregard for victims.

Indeed, in some cases (including perhaps this one), a serious and sustained concern for ALL crime victims might require a unique concern for politics and practicalities. If Kasich was concerned about the physical challenges of executing Post and the (excessive) attention this case might generate, he might well have concluded that the victims of all the other murderers scheduled for execution in Ohio would have been unduly harmed by the litigation and hand-wringing that the Post case was already generating. Though such a calculating concern for other victims awaiting capital justice may not be a valid concern for a pure retributivist, the reality of being a real decision-maker in a real high-profile setting is that purity in theory or practice is more of a luxury than us pundits may realize.

As you now know, Gov. Kasich wasted no time granting clemency in this case. I would be interested to confirm if you would now assert that this gubenatorial decision was "divorced from any hint of morality."

Posted by: Doug B. | Dec 19, 2012 11:42:03 AM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB