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May 16, 2012

"Death as bargaining chip? Ohio prosecutor slammed"

The title of this post is the headline of this notable new AP article.  Here are excerpts:

Within days of a drug-related slaying in suburban Cleveland, six men were indicted on charges that carried the possibility of a death sentence.  Six months later, all had been allowed to plead to lesser charges, including four who received probation and never went to prison.

In short, the men quickly went from facing the possibility of being strapped to a gurney and having 5 grams of pentobarbital injected into their veins, to prison sentences more typical for robbers and thieves.  "It probably was a negotiating tool," said defense attorney Reuben Sheperd, who represented defendant Alex Ford.  "You'll be more motivated than you were in other circumstances."

Such scenarios are typical in the county home to Cleveland, where prosecutor Bill Mason pursues dozens of offenders on capital charges each year at added expense to taxpayers and at the risk of some defendants ending up on death row for charges that would be minor elsewhere, even as the number of death penalty prosecutions plummets in Ohio and nationwide, according to an analysis of records by The Associated Press.

Elsewhere in Ohio, prosecutors are pursuing only the most heinous crimes as death penalty cases and are refusing to plea bargain, or are using a 2005 law that allows them to seek life with no chance of parole and never place capital punishment on the table.  Mason denies he uses the death penalty as a negotiating tool but also says he never rules out the possibility of lesser charges as more information about a case comes to light....

Defense attorneys have long complained about the high number of capital indictments in Cuyahoga County, a practice that precedes Mason but that he continued after first taking office in 2000.  But now one of the state's most conservative and pro-death penalty prosecutors is weighing in.

Joe Deters, prosecutor in Hamilton County, renewed questions about Cuyahoga County's approach during meetings of an Ohio Supreme Court task force.  The group, which meets again Thursday, is looking for ways to improve the state's death penalty law. "To use the death penalty to force a plea bargain, I think it's unethical to do that," Deters said in an interview.

Hamilton County, home to Cincinnati, has sent the most inmates to Ohio's death row — 61 over 30 years — though the county has indicted fewer than 200 people in three decades. Deters doesn't accept plea bargains once he decides to pursue a death penalty case.

Mason says a committee of assistant prosecutors reviews the evidence of each death penalty case and encourages defense attorneys to produce reasons that could weigh against the death penalty.  "When we seek the death penalty it is not to secure a plea bargain, but instead to equally apply the law," Mason said.

Despite the higher number of capital indictments, Mason's record of winning death sentences is no better than other counties, some of them smaller than Cuyahoga, with about 1.3 million residents.  From 2009 to 2011, for example, Cuyahoga County indicted 135 defendants on charges that could result in a death sentence, according to records maintained by Mason's office. 

Only two of those offenders were sent to death row, including Anthony Sowell, convicted in 2011 of killing 11 women.  The rest either pleaded guilty, usually with the death penalty charges withdrawn, or were convicted but not sentenced to death.  In six cases, charges were dismissed.

By contrast, Butler County in southwest Ohio, with 368,000 residents, recorded three death sentences during the same time but indicted just six people on capital charges. "The proof of guilt in a death penalty case has to be near absolute, not a crap shoot," said Butler County prosecutor Michael Gmoser. In addition, "The case has to shock the conscience of the community," he said....

Mason's approach runs counter to a 40-year-old U.S. Supreme Court decision that threw out the country's death penalty laws in part over the arbitrariness of the laws in place at the time, said Ohio state public defender Tim Young.  The risk of someone ending up on death row for a crime that might be a far lesser offense elsewhere "seems like a wildly dangerous use" of the death penalty, Young added.

I have never quite fully understood just why it would be considered completely inappropriate for a prosecutor to use death penalty charges a lot, especially given that (1) death sentences are never mandatory, (2) death charges cannot be brought unless and until a defendant commits an especially bad form of murder, and (3) only the threat of a death sentence seems likely to encourage a very guilty murder defendant to be willing to plead guilty to an offense that carries a life or LWOP term.

In contrast, there is little doubt (and too little criticism) of the tendency of prosecutors to use severe mandatory prison terms charges as a bargaining chip not only to secure a plea, but also to force a defendant to become a cooperator against others.  In many federal cases, I too often see examples of prosecutors using threats of mandatory prison terms to require non-violent drug and gun offenders to give up their rights in cases that are quite suspect and far more mitigated than any potential capital case.

In other words, I worry more about overcharging more in the application of mandatory prison terms than in capital cases.

May 16, 2012 at 06:20 PM | Permalink


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From the story: "...and at the risk of some defendants ending up on death row for charges that would be minor elsewhere."

Good grief. You can only wind up on death row for first degree murder. First degree murder is not a "minor" charge anywhere in the world -- except, it seems, in the mind of the author of this hit piece.

Posted by: Bill Otis | May 16, 2012 7:24:37 PM

I, too, am puzzled at the suggestion, which I have heard from defense counsel and prosecutors alike, that using the death penalty as leverage for a plea deal is any more ethically sketchy than using the same ploy in non-capital cases.

Posted by: Michael J.Z. Mannheimer | May 16, 2012 9:02:01 PM

According to the article four of the six people did not receive prison sentences. Because the media screws up details all the time, this may not mean sentences with no actual stand committed time, but at worst the four of them received twelve month sentences in county jail or time served sentences. Crimes that merit time served or twelve months can be fairly labeled "minor" when we are discussing the death penalty.

And this means either the four of those six people are only sufficiently culpable to merit twelve months or less, in which case they should never have been charged with capital murder, or the prosecutor had such horrible proof problems he offered twelve months on a capital murder, in which case they should never have been charged. But combine conspiracy law, felony murder rules and the Supreme Court's holding in Tison v. Arizona and a prosecutor can indict a defendant for capital murder even if the defendant did not directly kill anyone and is only connected to the murder through several degrees of separation. I suspect that happened here (although the article is far from clear).

Michael, I suspect you have never represented a client threatened with death. Overcharging a defendant by seeking the death penalty may be different only in degree, not in kind, than overcharging a defendant by seeking an inappropriately long prison sentence, but that degree is huge in practice. Telling a client that the government is trying to kill them is horrible in any case, but when the death penalty is a clear overcharge the client's first question is still "will they kill me." And you have to answer "I doubt it, but I cannot guarantee it. In any death penalty case there is a chance you will end up dead."

Posted by: Paul | May 16, 2012 9:55:49 PM

I agree with Paul. Judges are becoming irrelevant in the modern criminal sentencing practice, where prosecutors have so much power and control over the ultimate sentence. The biggest change I have seen in the criminal practice over the last forty years is the tendency of prosecutors to pile on charge after charge,often arising from the same conduct in defiance of all notions of double jeopardy, to expose a defendant to such an enormous sentence that they have no choice but to accept whatever plea bargain is offered to them. Doug, whether it is a potential death sentence or a potential zillion years in prison makes no difference. It is still, in my opinion, an abuse of power. I have known prosecutors to bring capital charges against a defendant when it is obvious to everyone that the case is not one of the "worst of the worst."


Posted by: bruce cunningham | May 16, 2012 10:48:03 PM

what suprises me is we don't see too many DEAD prosecutors on the court room floor! i know in cases like these if i was the one the DA was trying their shit one...if they screwed up even ONCE and gave me a SHOT they would be dead!

thanks to all that great govt training i only need about 2.5 secs if you come in range!

Posted by: rodsmith | May 16, 2012 11:03:02 PM

The USSC accepts "death is different," but some don't, I guess.

The idea it is "completely inappropriate" is likely often for effect. The case of "four who received probation and never went to prison" being threatened is more akin to what some here are concerned about. Apparently, "an especially bad form of murder" etc. is not completely a narrow category.

If "probation" is given, is a threat of the death penalty the only alternative? Also, it is a bit curious that the higher rates apply to certain counties. Don't other counties also have real serious crimes and need a threat to hang over defendants? But, overall, death is different. Duly noted, some don't think so. The professor might be one, since he disagrees with precedent on another matter.

Posted by: Joe | May 17, 2012 12:32:44 AM

"I worry more about overcharging more in the application of mandatory prison terms than in capital cases."

I probably agree generally but don't understand why you would make the distinction or find it important. If routine overcharging to coerce defendants to give up their rights is objectionable in one setting, the criticisms translate in both. If you understand why it's problematic for mandatory minimums, it's hard to see why you never "quite fully understood" the issue in capital cases, particularly given situations like this one.

Posted by: Gritsforbreakfast | May 17, 2012 4:22:42 AM

There are two different questions posed by the article and the comments.

First, is it inappropriate for a prosecutor to charge a defendant with the offense (and potential statutory aggravating circumstances) that the prosecutor beleives reflects the actual conduct of the victim even if the prosecutor is willing to consider accepting a guilty plea to something less? I think the clear answer under the ethical rules is no and should be no unless we believe that the rules should hamstring the State from actually enforcing the law as written.

Second, is it inappropriate for a prosecutor to charge a defendant with an offense significantly more serious than the offense which was actually committed in order to force a plea to the actual offenses? The ethical standards for prosecutors are pretty clear that it is.

The rules are pretty simple. A prosecutor is required to have probable cause for the offense and a belief that a reasonable jury is likely to return a favorable verdict (i.e. find guilt on the offense charged and on the aggravating circumstance.) If, at some point in the case, the facts known to the prosecutor show that the original charge is unsupportable, the prosecutor has an obligation to sua sponte amend the charges rather than continue to use the original charges for negotiating leverage.

While the press coverage raises questions about whether these standards are being followed in Cuyahoga County, the accuracy of such allegations is properly resolved by the appropriate professional responsibility authority in Ohio.

Posted by: TMM | May 17, 2012 10:32:38 AM

Minor typo -- meant "actual conduct of defendant" not "actual conduct of victim."

Posted by: TMM | May 17, 2012 10:34:43 AM

Grits: You link to a case with innocence concerns, which is beyond the ambit of my concerns in this thread. If there was evidence that prosecutors are more likely to overcharge in cases (capital or otherwise) in which the evidence of guilt is weak, then I could see strong connections between concerns about wrongful convictions and concerns about overcharging. But, tellingly, there is very little (far too little, in my view) attention given to wrongful convictions among those who plead guilty, so I tend not to see the direct connection between these sometime distinct sets of concerns.

More generally, I agree that overcharging should be (and is) a concern for me in all settings. But the scope and impact of overcharging seems far more limited in capital cases thanks to various constitutional and statutory doctrines. A capital charge is not even possible unless an (adult, non-MR) offender is linked to a murder, and both judges and juries will always have discretion to reject a prosecutors efforts to impose a death sentence. But, at least in federal courts, just about any and every hand-to-hand drug sale presents an opportunity for a federal prosecutor to bring an indictment carrying at least two significant mandatory prison terms. And while this article expresses concerns about 135 capital charges in one county over a three-year period, there are more than 1000 federal charges of drug offenders carrying significant mandatory prison terms each and every MONTH.

That all said, I suspect Paul is 100% right that a capital indictment will always get a defendant's attention a lot more than any other indictment, even one carrying a mandatory LWOP term. But I am not really sure that is such a bad thing, especially given that Paul and others can tell capital defendants that they will have some chance to convince a judge and a jury (and then appeals judges) that death is not a proper sentence in the case. In contrast, those representing federal defendants in some cases have to tell their clients that they will have no right or opportunity to try to convince anyone but a prosecutor that a lengthy prison term is unjustified. Indeed, federal defendants have to be told that even when a judge and jury is sincerely convinced a severe mandatory minimum would be a grave injustice, that term still has to be imposed. See, e.g., US v. Angelos (where 55-year term for hand-to-hand pot sales was required even after judge and jury urged sentence no greater than 18 years).

Posted by: Doug B. | May 17, 2012 6:02:01 PM

Professor, I agree with you that overcharging under horribly overbroad laws with mandatory minimums are objectively more horrible than overcharging capital cases. I am sure if some academic stopped researching what people in 1789 thought about criminal law and came up with an objective measure of injustice, they would find that federal career offender laws produce far more total injustice than overcharged capital cases. When a defendant who has two misdemeanor resisting arrest charges adjourned in contemplation of dismissal, or continued without a finding, or whatever the state labels it, and that defendant happens to be in a state where such a disposition requires an admission of sufficient facts to support a conviction, that defendant should not have a simple federal drug charge elevated from 48 months under the guidelines to a mandatory 15 years. But that is a common occurrence, one far more common than the overcharged capital indictments discussed in the article.

An overcharged capital murder indictment necessarily produces an equal reaction. I don't want to oversell my own experience; Bruce Cunningham has lead counseled far more capital cases than the number of capital cases I have had even the most minor involvement in. But when one is in the trenches, the threat of killing a client who clearly does not deserve death produces an equal and opposite reaction. It might be rational for a trench lawyer to spend at least as much time fighting the illegitimate use of a horrendous twenty year mandatory minimum as the time spent defending an overcharged capital case, but when a trench lawyer has both cases it is next to impossible not to focus on the client who could be killed when they deserve to live. I don't claim that this is perfectly rational.

Posted by: Paul | May 17, 2012 11:48:13 PM

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