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January 26, 2013

Channeling Justice Brennan, new Ohio Supreme Court Justice dissents from order setting execution date

As reported in this AP piece,the "Ohio Supreme Court has set an execution date for a condemned killer who stabbed a 10-year-old girl."  That fact alone is not especially noteworthy, though the date scheduled and a dissent from a newly elected Justice makes this otherwise routine matter blogworthy:

The Supreme Court on Friday set a May 14, 2015, execution date for [Jeffrey] Wogenstahl.

Justice William O'Neill dissented, saying the death penalty is "inherently both cruel and unusual" and is unconstitutional.  The Democrat said it was time for Ohio to end what he called an outdated form of punishment.  O'Neill's comments were unusual for what is usually a routine matter.  Even Justice Paul Pfeifer, now a death penalty opponent who wants Ohio's law overturned, voted in favor of the date and sometimes upholds death sentences.

That Ohio is now setting execution dates now nearly 30 months out (and only after decades of capital appeals) provides yet another interesting window on the realities of capital justice delayed.  But even more interesting is that Justice O'Neill appears to indicating that he will dissent from any and every effort to implement the death penalty in Ohio.  His full dissent is available at this link, and here are excerpts:
If there exists a case that is appropriate for the imposition of the death sentence, this case clearly qualifies. Appellant was convicted of kidnapping a ten-year-old girl from her home, taking her to a secluded area, and stabbing her to death.  There can be no disputing that this was a horrific act that is deserving of the strongest penalty possible.

Without expressing an opinion as to appellant’s guilt or innocence, however, I would hold that capital punishment violates the Eighth Amendment to the Constitution of the United States and Article I, Section 9 of the Ohio Constitution.  The death penalty is inherently both cruel and unusual and therefore is unconstitutional.

Capital punishment dates back to the days when decapitations, hangings, and brandings were also the norm. Surely, our society has evolved since those barbaric days.  The United States is one of just a few civilized countries that still permit state executions.

To date, 17 states and the District of Columbia have eliminated the death penalty altogether.  It is clear that the death penalty is becoming increasingly rare both around the world and in America.  By definition it is unusual....

Additionally, death, even by lethal injection, is a cruel punishment. One need only look at the recent Ohio case of Romell Broom for a demonstration of that proposition.  Although the executioners spent over two hours attempting to find a vein through which to administer the lethal injection, they ultimately failed.  Subsequently, the governor granted a one-week reprieve....

Broom remains on death row today.  A more chilling definition of cruel is hard to imagine....

The time to end this outdated form of punishment in Ohio has arrived.  While I recognize that capital punishment is the law of the land, I cannot participate in what I consider to be a violation of the Constitution I have sworn to uphold.  I must respectfully dissent.

January 26, 2013 at 02:41 PM | Permalink

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Comments

What is it about the death penalty that makes judges want to take up the cudgel for these sorts of lowlifes?

By the way, Justice O'Neill is a doofus. How is something "inherently" unusual? That's kind of a silly concept. And then there's this bon mot:

"A more chilling definition of cruel is hard to imagine...." well, hanging, drawing and quartering would seem to qualify. And that's not getting into the crime itself. But the point is the hyperbole. This judge cannot make his "let's save the child murderer" argument without resorting to cheap rhetoric.

My guess is that this learned judge's other opinions ain't so hot either.

By the way, if this knucklehead judge truly wants to see something that's "chilling," he should look at Brewington v. State (Ind. App. 2013) and the prosecutor's crowing that it is a victory for justice.

Posted by: federalist | Jan 26, 2013 5:28:26 PM

The Sixth Commandment: Thou Shalt Not Kill.

I dont see an exception for The People of a State to kill or a phrase such as "Y'all Can". Why do they term it an "execution"? It is a killing. The other Justices on that court are going to have to do some explaining when their time comes for the interview at the Pearly Gates. I suppose they will cite the Sears Roebuck version of the King James Version of the Bible--said copy now being sold at a store being closed near you.

Posted by: OldFart | Jan 26, 2013 6:44:13 PM

The Sixth Commandment did--so now I assume all of those who kill in self-defense will go to Hell. Thanks for clarifying.

Posted by: federalist | Jan 26, 2013 7:59:54 PM

OldFart --

What makes you think that Biblical "law" controls law in a secular state?

Hey, if you're into that sort of thing, hop over to Iran. They've got the Supreme Ayatollah to call the shots. And I don't think they're really into the Sixth Commandment or other aspects of Judeo-Christian doctrine.

Let us know how you like living in a theocracy.

Posted by: Bill Otis | Jan 26, 2013 8:10:20 PM

This judge should be disqualified from any DP case. His bias is just gross. He cant be impartial. Another wack nut liberal judge who defies supreme court precedent. State reps should impeach him.

Posted by: DeanO | Jan 26, 2013 8:49:53 PM

@OldFart
Should we disband the army?

Posted by: MikeinCT | Jan 26, 2013 8:54:50 PM

Where did this come from? Did he just decide last week that the death penalty violates the 8th amendment? Has O'Neill objected to setting any other execution dates?

I thought that I was reading a Boyce Martin dissent.

Posted by: DaveP | Jan 26, 2013 9:08:32 PM

O'Neill just started his term this month. I presume this was his first action in a death penalty case.

Posted by: DaveP | Jan 26, 2013 9:21:10 PM

I think there's more than a little to what DeanO says. Aren't judges who have prejudged an issue required to recuse themselves?

What would DP opponents think of a judge who announced that he viewed the DP as approriate for every case of first degree murder? Would they not be shouting for his recusal (if not removal)?

They certainly should be. Why not the same deal with Justice O'Neill?

Posted by: Bill Otis | Jan 26, 2013 10:19:42 PM

Bill Otis
That reminds me of the time back in the 1980's when I was discussing the DP with 2 US District judges. I made the same recusal
argument about Brennan and Marshall. They both laughed and nodded their heads.

Posted by: DaveP | Jan 27, 2013 7:47:47 AM

The judge here was elected by beating an incumbent judge in a close election but I don't know how much such issues factored into the campaign. Some state judicial elections do address such matters (being pro-death penalty can help), others do not. Don't know where Ohio falls or if the voters were aware of his overall views here. But, the people did elect him.

He also is a Vietnam veteran (Bronze Star) though he wouldn't be the first person whose views on the legitimacy of state killing certain people would be changed greatly as a result of military service. He background in nursing might also have influenced his beliefs in some fashion.

The meaning of the commandment is a matter of dispute, down to different versions of the Ten Commandments, some using "murder" while others using "killing." The source of that command lists various justified uses of it though even Bill Otis and Federalist would oppose some of them.

Anyway, he was just elected (on a reformer ticket) and very well might just be making a statement. Let's see how consistent he is. As to recusal, conservative justices like Scalia are pretty closed-minded about longheld precedents like Roe v. Wade and don't seem to be ruling with an open-mind. Doesn't recuse. That isn't quite how it works though, I guess.


Posted by: Joe | Jan 27, 2013 9:48:47 AM

There are 17,000 extra-judicial executions, and there will be that many every year for the foreseeable future. Over 90% of us will die roughly. Why does execution have to be perfect? It is unclear if life in prison is less cruel.

One thing is certain. All decisions and their dissents will promote government make work lawyer jobs. We are witnessing a racket. Each side tries to seem more pious, but it does not matter, lawyers on both sides will always generate jobs through their hyper-procedural scam. Let the 17,000 victims rot.

Posted by: Supremacy Claus | Jan 27, 2013 10:23:49 AM

"But, the people did elect him."

Diane Hathaway was also elected by the people. Horrible judge. Worse person.

Posted by: federalist | Jan 27, 2013 1:11:30 PM

We don t know such kind of justice in germany

Posted by: dolmetscher | Jan 27, 2013 1:40:45 PM

how do you know if a person good or not?

Posted by: übersetzung | Jan 27, 2013 1:43:44 PM

Joe --

Do you think a judge who has a pre-determined opinion of a specific legal issue should recuse himself from deliberating in a case in which that issue is presented?

Yes or no, if you would.

If it's no, why not? Isn't the very essence of judging reaching a result under established law based on the facts of the individual case?

Posted by: Bill Otis | Jan 27, 2013 2:53:08 PM

Bill, trying to pin down Joe is a waste of time. Joe uses a lot of words but says very little.

It's patently obvious that O'Neill ain't so bright---after all, "inherently unusual" is an odd concept. And the hyperbole over the Broom execution is just silliness. But Joe won't defend those bon mots---rather, he'll prattle on about the guy being elected. Joe's act is tired. And, ultimately, it shows that he's more clever than bright.

Posted by: federalist | Jan 27, 2013 3:28:27 PM

Well all i can say is if the death penalty is legal in his state. Doesn't matter who voted him in. If he does not recognize it as a legal punshiment he has no buisness anywhere near any case that can result in that punishment. removal should be automatic now that he's come out of the closet as it were!

Posted by: rodsmith | Jan 27, 2013 3:48:18 PM

I have a feeling this will cause Kasich to stop commuting sentences; O'neill has just hurt his cause.

Posted by: Jacob Berlove | Jan 27, 2013 8:22:21 PM

Let's see how consistent he is. As to recusal, conservative justices like Scalia are pretty closed-minded about longheld precedents like Roe v. Wade and don't seem to be ruling with an open-mind. Doesn't recuse. That isn't quite how it works though, I guess.

Posted by: Profi-fachuebersetzungen.com | Jan 28, 2013 5:11:32 AM

|| "Justice William O'Neill dissented, saying the death penalty is "inherently both cruel and unusual" and is unconstitutional." ||
||O'Neill appears to indicate that he will dissent from any & every effort to implement the death penalty in Ohio.~D. Berman ||

By defying the unambiguous intent of the 8th Amendment and 2 centuries of precedent,
O'Neill epitomizes a legislator, not a justice.

Posted by: Adamakis | Jan 28, 2013 10:18:25 AM

"O’NEILL, J., dissenting.
{¶ 2} Without expressing an opinion as to appellant’s guilt or innocence, however, I would hold that capital punishment violates the Eighth Amendment..."
{ EVIDENCE BE DAMNED?, Mr. Justice? }

1. -- The life of the child was beautiful. The life of the murderer is disgusting.~~Prov 6:16-17, Rom 13:4
2.-- As she slept in her bed, Jeffrey Wogenstahl kidnapped the 10-yr-old subsequent to brutalising her.
3.-- Wogenstahl stabbed her over 12 times and also caused severe blunt trauma to most of her body.
4.-- Taken just days before Thanksgiving 1991, the people of the town of Harrison looked for her.
5.-- Wogenstahl had discarded the child's body alongside an Indiana road.

6.-- "Amber Nicole Garrett was a 10 year old who loved to dance, play outdoors and swim!"

Posted by: Adamakis | Jan 28, 2013 11:38:46 AM

"Do you think a judge who has a pre-determined opinion of a specific legal issue should recuse himself from deliberating in a case in which that issue is presented?"

What does this mean? Justice Scalia has a "pre-determined opinion" that Roe v. Wade is a lousy decision that isn't warranted by the Constitution. Judges write opinions on "specific legal issues." If the matter comes up again, they clearly have an opinion on it. They can change their mind and should have an open mind on the subject. But, they still have a 'pre-determined opinion' on it.

"Isn't the very essence of judging reaching a result under established law based on the facts of the individual case?"

Scalia opposes the "established law" (if this means long-held precedent) on abortion and repeatedly dissented in part because he wants to defend what he thinks the Constitution truly demands. Is he violating the "essence of judging"? This "water is wet" logic w/o addressing the details of the question doesn't take us that far.

The judge here, in a rather symbolic fashion since the matter isn't put to a head (the execution date is years away) is voicing an opinion that the Ohio Constitution requires a certain result. Including based on the facts of a case. If precedent alone must be followed w/o dissent, should Scalia fall to the way-side too? I don't blame him, mind you. Both sides do what he does.

Posted by: Joe | Jan 28, 2013 11:48:32 AM

It would be more interesting if he had given his list of the other "civilized" countries which still retain the death penalty so we can see who he considers civilized. Japan? India? Taiwan? The various Commonwealth-member commmon-law jurisdictions in the Caribbean?

Posted by: JWB | Jan 28, 2013 12:46:14 PM

Does the death penalty supporting crowd have anything to offer but the type of claptrap it has spewed above?

Posted by: Scarlett Rose | Jan 28, 2013 1:27:57 PM

Joe --

Federalist warned me that I wouldn't get a straight answer, and you vindicated him. I will nonetheless try again.

Do you think a judge who has a pre-determined opinion of a specific legal issue should recuse himself from deliberating in a case in which that issue is presented?

You know perfectly well what this means, and I'm not referring to Scalia or O'Neill or any particular jurist, so please don't veer off on that stuff.

Is the answer to the question yes or no?

Posted by: Bill Otis | Jan 28, 2013 1:51:58 PM

@Scarlett Rose
Have you offered anything of substance or countered our points? No? Then don't complain.

Posted by: MikeinCT | Jan 28, 2013 4:40:28 PM

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