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November 1, 2011

Any advice for one member of the new 21-member Ohio Death Penalty Task Force?

As detailed in this official press release, Ohio has a new task force whose task is to review the state's death penalty and I have the honor of being one of 21 formal members of this force.  Here are the basics as reported in the press release:

In a cooperative effort between the Supreme Court of Ohio and the Ohio State Bar Association, the Joint Task Force to Review the Administration of Ohio’s Death Penalty will meet for the first time Nov. 3.

The group of 21 judges, prosecuting and defense attorneys, and lawmakers will hold its first working session from 10 a.m. to 2 p.m. at the Ohio State Bar Association (OSBA), 1700 Lake Shore Drive, in Columbus.

Chief Justice Maureen O’Connor announced the formation of the Joint Task Force during the annual State of Judiciary in September.

During Thursday’s meeting, the task force will conduct a thorough review of capital punishment to ensure that Ohio’s death penalty is administered in the most fair and judicious manner possible.  Members will examine the death penalty process and study current laws on the death penalty and procedures other states across the country use.

“The Joint Task Force will examine the current laws on the subject and the practices in other jurisdictions.  It will review and identify areas in need of action and recommend the course of action,” Chief Justice O’Connor said.  “The task force will not decide whether Ohio should or should not have the death penalty.  It will not be on the table for discussion.”

“Our goal is to take a careful review of the administration of capital punishment in Ohio to ensure fairness in its application,” OSBA President Carol Seubert Marx said.

Once the task force develops a comprehensive set of recommendations over the course of several meetings, members will give their proposals next year to the state for consideration.

The Joint Task Force is chaired by the retired Hon. James A. Brogan of the Second District Court of Appeals in Dayton.

I am honored to have been asked to serve as a member of the Joint Task Force to Review the Administration of Ohio’s Death Penalty (and I am committed to making sure I do not make anyone sorry that they invited me to be a member of this Ohio DP Task Force).  I am not yet sure if I will be able to or should be eager to blog about the public aspects of my service on this Task Force, but I am sure I would love to hear suggestions from readers about how best to serve this force.

November 1, 2011 at 07:38 PM | Permalink


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Yes. The differences between jurisdictions has to be respected. Some counties are more agreeable to the death penalty than others. If there's some idea of fairness across different jurisdictions, then you give the more lenient counties an effective veto over the death penalty. That's anti-democratic.

The other piece of advice. Pass a law that makes a death sentence for a prison inmate killing a guard a mandatory death sentence. Give the guy the jury trial too. And if that fails, he gets the mandatory death sentence. Use that as a test case.

Posted by: federalist | Nov 1, 2011 8:00:28 PM

Yes: * speed * it up! Perhaps like some of the relatively quick states do it, i.e. with only the generous 3 major appeals demanded by SCOTUS precedent.

Let's maximize the deterrence; more than 10 years is a farce. Why not like Mohammad and McVeigh?

Remember Buckeyes, "Because sentence against an evil work is not executed speedily, therefore the heart of the sons of men is fully set in them to do evil."

Posted by: adamakis | Nov 1, 2011 8:06:18 PM

My advice is don't expect to accomplish anything. 21 is just too many people for that.

Posted by: Soronel Haetir | Nov 1, 2011 8:16:27 PM

You were put on the task force to exercise your judgment. If you are "committed to making sure I do not make anyone sorry that they invited me to be a member of this Ohio DP Task Force" then you are not exercising your judgment but, instead, defering to your patron. Is that what your patron wants? Is that what you want?

Posted by: k | Nov 1, 2011 8:58:01 PM

I don't know whether Ohio has the equivalent of Indiana's Criminal Rule 24 (establishing qualifications and pay for defense attorneys in capital cases), but this rule has made a notable difference in the general quality of representation in capital cases in Ind. since its adoption in the 90's.

Posted by: Andrew H. | Nov 1, 2011 10:14:47 PM

1. Better pay for defense lawyers.
2. Better training for defense lawyers, financed by the bar.
3. Expedited review at every stage. Any reviewing court has 90 days max to render judgment.
4. Cap expenses. One million bucks per side, maximum. A possible addition of $250,000 upon a showing of clear necessity.
5. A fine of $10,000 to be levied personaly against any lawyer, prosecution or defense, whose serious error requires the case to be re-tried, plus severe disciplinary action by the bar.

Posted by: Bill Otis | Nov 1, 2011 11:14:08 PM

Be honest and unequivocal in your advice that "no amount of tinkering with the machinery of death" will ever repair the deeply broken process that is the death penalty .... in Ohio or in any other state of America.

Posted by: peter | Nov 2, 2011 3:15:23 AM

If there's going to be a death penalty in Ohio, the one-execution-a-month rule needs to be abolished. Other death-penalty states can easily handle more than one a month. Certainly, Ohio can too. It's absurd that execution dates are being set up to two years in advance.

Posted by: alpino | Nov 2, 2011 4:00:33 AM

I offer this: Take it seriously and remind yourself and the other panelists that yes, some folks do need to simply be removed from the land of the living:

'Monster of Mayport' says he is Killing Behind Bars

Submitted by Jeff Marcu, Anchor/Investigative Reporter

MAYPORT, Fla. -- It was May 2003, but many can remember the horror like it was yesterday.
William Wells called First Coast News in 2003, to confess to killing five people in Mayport.
"And she goes, 'now what are you going to do?' And I stuck it to the back of her head and I said, 'this', and I pulled the trigger and it went off. And I literally, literally defecated my pants. I watched her face spray against the wall in front of me and she fell over," Wells said during a phone interview in 2003.

Wells, who dubbed himself the Monster of Mayport, killed five people in his double-wide mobile home on Ocean Street, hiding the decomposing bodies in his home for more than a week.

Wells pleaded guilty to shooting his wife, Irene Wells; his father-in-law, Bill McMains; his brother-in-law John McMains; and two other men, Richard Reese and James Young.
Investigators found dead bodies in nearly every room of his home. Wells' 4-year-old son lived in the home while the bodies decomposed.
Now, on the quiet streets of Mayport, family members of victims, and just about everyone else know the story but no one wants to talk on camera about Wells, the man who changed the Village of Mayport forever.
"I fired a round around the corner, which caught him in the side of the head, when I looked around the corner he was holding his head and blood was pouring out," said Wells of one of his victims during the 2003 phone call.
"I shot him in the side of the head and drug him on into my son's room. I just fired, I still don't even know where I shot him at. If I shot him in the head or the chest or the neck. I don't know where I hit him - in head or chest or the neck," said Wells.
Harry Shorstein, former 4th Judicial Circuit state attorney called the case "extremely egregious."
Shorstein was the state attorney who helped oversee Wells' prosecution. "It's a case that looking at the facts warrants seeking the death penalty. But when you give consideration to the other factors, the legal factors, as well as the wishes of the family, and the offer to plead guilty and to have the case disposed of very, very quickly..." he said.
Well's life was spared. He reached out to First Coast News again with a letter on Aug. 10, bragging about his accomplishments.
"Contrary to the elements of your justice system I managed to prevail with a mere 5 life sentences," he wrote.
"Since that time I have spent my glorious days basking in the beautiful rays of Florida State Prison," Wells wrote. "Where I have relived my 2003 escapade."
Those escapades have not ended in Mayport. In 2003, while being held at a South Florida prison, Wells was convicted of attempted murder of a fellow inmate, and given a sixth life sentence. "I have since tied and strangled an inmate while excitedly stabbing him 21 times," he wrote.
In another incident, according to the 8th Judicial Circuit, the Monster of Mayport is accused of murdering again. Of the attack on fellow inmate, 21-year-old Xavier Rodriguez, Wells wrote, "...myself and an accomplice bound, strangled and killed yet another inmate...So I guess my quest for the lethal injection continues."
Shorstein said Wells' illness is apparent. "It's very obvious that he suffers from severe mental disorder, which are factors that in and of themselves can prohibit the ultimate imposition of the death penalty," he said.
Wells also blames prosecutors in his original case, including Shorstein, for more people dying. He wrote that if they were "more thorough in convicting me in 2003 of the Mayport murders and pushing fervently for the death penalty, no one else would have had to die."
But Shorstein said that almost no one is executed within five years of sentencing. "If anyone were to think that had we sought the death penalty these subsequent acts wouldn't have occurred, it would really be foolhardy..."
Wells also takes a jab at the lawyers at the 8th Judicial Circuit working on prosecuting him on the latest murder charge. "I find it very unsettling how the DA's office here in Bradford County seems to have sweeped this case under the rug, since it is only a useless worthless inmate anyway, society could care less, right?"
A requested prison interview with Wells was denied because of the recent first degree murder charges, said Steve Arthur, a spokesperson for the Department of Corrections.
Attorneys at the 8th Circuit cannot talk about the this case because it is active, but Spencer Mann, the chief investigator at the State Attorney's Office said they are preparing for trial and expect the case to go to court sometime next year.

Posted by: Rich Mantei | Nov 2, 2011 7:09:38 AM

When death penalty advocates start citing Virginia as a model to be followed, pay close attention to Virginia's rules for the qualification, appointment, and compensation of counsel in death elgible cases. You may not want to tell the death penalty advocates that combined with LWOP, those new rules have resulted in the death penalty being virtually eliminated outside of a few rural counties mainly along the VA/NC border and extraordinary cases like the D.C. sniper. Speaking of the D.C. sniper, the attorney appointed to represent him as his lead counsel is widely considered to be the best criminal defense counsel in the entire state. The other death qualified defense counsel are also among the best criminal defense lawyers in the state. That is something that every death penalty state should follow.

A lesson of what to avoid to draw from Virginia is the persistence of the death penalty in the rural counties mainly along the VA/NC border. Virginia's local government funding structure especially for the Commonwealth's Attorney offices includes the number of death penalty cases brought and tried. That creates a financial incentive for rural counties to bring and try death penalty cases resulting in a large geographic disparity in the death penalty. Because the main death penalty region in Virginia has a large African American population, it also creates a racial disparity in the use of death sentences. As Virginia shows, the geographic and racial disparity of the use of the death penalty may be based on economic issues. In Virginia's case it is by creating a financial incentive for rural counties to seek the death penalty in all death elgible cases. Keep in mind that finances and not democracy may explain geographic disparities - look at the funding method for death penalty cases and who has to pay the bill.

ginny :)

Posted by: virginia | Nov 2, 2011 8:17:57 AM

Hey Doug, I'd like to see some figures of what percentage of capital murders (or first degree or whatever you call it in OH) have facts that make them death eligible. In other words, how broad is the statute? Is OH relying on a system where most-all murders are death eligible and it is only prosecutorial discretion that prevents most-all from being tried as death cases? Given the public pressures they face, is it reasonable for prosecutors to play this narrowing role? Or should the statute itself be narrowed.

Posted by: dm | Nov 2, 2011 9:37:39 AM

If practical and moral arguments don't persuade you that ending the death penalty is the only rational and proper thing to do, a critical issue in administering it is to curtail institutional and covert racism. Do not submit to the reasoning that "Apparent disparities in sentencing are an inevitable part of our criminal justice system." The damage done by McClesky v. Kemp, 481 U.S. 279, should be undone as much as possible by legislation and state constitutional law. Consider North Carolina's The Racial Justice Act, N.C.G.S.A. § 15A-2010. Read "The New Jim Crow: Mass Incarceration in the Age of Colorblindness" by Michelle Alexander and think about how the history set out there applies in the death penalty setting. In over 30 years of working first as a public defense lawyer doing appeals and then in efforts to improve public defense quality system-wide, I have come to see the corrosive effects of racism and capital punishment as major forces in injustice.

Posted by: Mardi C | Nov 2, 2011 10:26:13 AM

Be sure to take a look at the postconviction process, including provision of adequate counsel, (mis)use of procedural defaults, whether courts analyze the cases themselves or sign lengthy orders prepared by the State, whether courts are providing reasonable and meaningful ability to develop a factual record, etc.

I don't know about Ohio, but in many states, there is a real problem where the state process is heavily tilted toward nitpicky proceduralism and summary denials without discovery, evidentiary hearings, etc. And given the current trend in federal habeas corpus law to defer to state procedural rulings, this unfortunately often results in federal court default and a situation where no court ever allows factual development or reviews the merits of serious constitutional claims (even though, ironically, those same courts may spend years laboring over arcane procedural arguments).

This is wasteful and unnecessary and Ohio should seek a more transparent system which encourages merits review of any legitimate issues and creates a clean record to encourage fair, efficient, and timely federal review. This would not only encourage just outcomes in cases with legitimate problems, but I would not be surprised if, in many cases, allowing review mostly on the merits would result in a significantly *shorter* total processing time through state postconviction and federal habeas corpus. (Cf. Janice Rogers Brown's opinion a few years ago making a similar argument)

Good luck!

Posted by: Anon | Nov 2, 2011 12:00:00 PM

Oh, also, I disagree with federalist about geographic disparity. (In fact, I have to wonder if he was jumping on this so quickly and preemptively because he is bright enough to see it is a huge area of systemic concern.)

I think there is a real arbitrariness problem when a capital indictment/death verdict depends strongly on what part of the state you commit your crime in. In any given case, fine, there will always be discretionary calls to be made. But if the differences are consistent and repeated over time, it becomes a serious problem. The Fourteenth Amendment applis to the States, not individually to counties, etc. You should absolutely look at any substantial county-by-county disparities.

Posted by: Anon | Nov 2, 2011 12:05:32 PM

With regard to procedural complexity, here is a simplified rule for successive reviews of a case. Every defendant gets one direct appeal for claims made on the trial record and one collateral review for claims requiring facts outside the record.

After that, there will be no further reviews unless "the petitioner supplements his constitutional claim with a colorable showing of factual innocence." See Kuhlmann v. Wilson, 477 U.S. 436, 438 (1986) (plurality opinion).

Innocence should be narrowly defined as "you got the wrong guy," not "too drunk to form intent," high-tech phrenology, or other psychobabble. Given the unlimited supply of psychiatrists who will swear to anything to defeat a death penalty, a limit with an exception for psychobabble is no limit.

This proposal would, of course, require you to subordinate claims in your speciality to a less favored position, but that's not too big a sacrifice for the greater good.

Posted by: Kent Scheidegger | Nov 2, 2011 12:20:35 PM

I'm not sure what Kent S. is talking about, because the litigation landscape he describes in his first paragraph largely seems to correspond to reality, at least in my experience (Southeast). Unless he is advocating the complete abolishment of federal habeas corpus review? Otherwise, you do get one direct review, and one collateral review (although the collateral review passes through state and federal court processes). Successive bars are very strong at this point, and it is extremely rare for a successive petition to succeed, or even gain a hearing. Likewise with stay litigation -- less then one out of a hundred of those gets any kind of hearing. For the vast majority of prisoners, it is already one bite at the apple (again, unless you count the state and federal apples as two; or perhaps that would be the state apple and the federal orange?).

Posted by: Anon2 | Nov 2, 2011 12:31:21 PM

Not everybody lives in the Southeast, Anon2. I do not. Our host does not. I'm not sure what the successive bar rule presently is in Ohio, to be frank, but in many states (including mine) it is considerably less watertight than you describe or I propose.

Posted by: Kent Scheidegger | Nov 2, 2011 12:53:58 PM

Fair enough.

Posted by: Anon2 | Nov 2, 2011 1:27:56 PM

I am from Ohio and the bar on successor petitions is pretty tight - i.e. limited to actual innocence type claims.

Posted by: defense attorney | Nov 2, 2011 1:34:17 PM

Whitewash in the making.

Posted by: anon | Nov 2, 2011 3:24:35 PM

The problem, anon, is that you then give a county an effective veto over the use of the death penalty. So then you elevate some idea of cosmic fairness between murderers over democracy--that cannot be right.

Posted by: federalist | Nov 2, 2011 6:39:25 PM

If Ohio is going to keep the death penalty then it has to reform the state post conviction process as it is applied. Presently, almost every person sentenced to death did not receive an evidentiary hearing on their post conviction claims. In fact, they did not even get discovery in post conviction. The problem is magnified by Cullen v. Pinholster which holds that claims adjudicated on the merits in state court cannot use evidence discovered in federal habeas to support a petitioner's argument that the state-court adjudication was contrary to or an unreasonable application of US Supreme Court precedent. In short, Pinholster is predicated in part on a false belief by the Supremes that the focus is in state court because state courts give defendants a fair shake in post conviction. Without discovery and resources in state post conviction a petitioner has a miniscule chance of legitimately obtaining relief.

Posted by: ? | Nov 2, 2011 9:04:26 PM

My advice is that you carefully read Daniel Kahneman' new book entitled Thinking, Fast And Slow. It was released last week. Death sentences are largely intuitive.

Posted by: Tom McGee | Nov 3, 2011 1:14:37 AM

did someone read it ?

Posted by: Dott. claudio giusti, italia | Nov 3, 2011 5:40:04 AM

Please consider allowing tort liability for all parties, including the judge for any deviation from professionals standards of due care that results in an inaccurate result. This would include liability to future victims of violence by inmates not given the death penalty.

Who is the owner of the Commission? Are you being paid for your hard work? Is the Commission a way to endorse current practice, in a propaganda way?

What does "fair" mean?

From Merriam Webster:

adj \ˈfer\
Definition of FAIR
: pleasing to the eye or mind especially because of fresh, charming, or flawless quality
: superficially pleasing : specious
a : clean, pure b : clear, legible
: not stormy or foul : fine
: ample
a : marked by impartiality and honesty : free from self-interest, prejudice, or favoritism
b (1) : conforming with the established rules : allowed (2) : consonant with merit or importance : due c : open to legitimate pursuit, attack, or ridicule
a : promising, likely b : favorable to a ship's course

archaic : free of obstacles
: not dark
a : sufficient but not ample : adequate
b : moderately numerous, large, or significant
: being such to the utmost : utter

Posted by: Supremacy Claus | Nov 3, 2011 8:35:18 AM

I am an interested citizen. Congratulations on being asked to serve as a member of the Task Force. Prior to discovering your blog this a.m., I sent you an email; with a letter to Chief Justice Maureen O'Connor attached. And I would welcome your feedback. Ray Metz - author/publisher of two books of "God Is My Co-Counsel" trilogy, subtitled "My Search for Peace in the Valley" and "The Rules of the Game".

Posted by: Ray Metz | Nov 5, 2011 7:15:06 AM

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