Tuesday - September 25, 2007

Everything You Really Need to Know about Today's ABA Report on Ohio's Death Penalty 

The ABA released a report today, calling for a suspension of the death penalty in Ohio. Here is the executive summary:

OHIO’S DEATH PENALTY 

PROBLEMS AND RECOMMENDATIONS 

As a society, we must do all we can to ensure a fair and accurate system for every person who faces the death penalty.  When a life is at stake, there is no room for error or injustice.  The Ohio Death Penalty Assessment Team, working with the American Bar Association, has found that Ohio’s death penalty is plagued with serious problems.  The Team recommends a number of reforms that would help to improve the fairness and accuracy of Ohio’s system.  Until these reforms are implemented, Ohio should temporarily suspend executions. 

1. Ohio should ensure that it provides adequate opportunities for death row inmates to prove their innocence.

Since 1973, the State of Ohio has exonerated five death row inmates and at least one additional person with strong claims of innocence remains on death row.  Despite these exonerations, the State of Ohio has not implemented a number of requirements that would make the conviction of an innocent person much less likely, including requiring the preservation of biological evidence for as long as the defendant remains incarcerated, requiring that crime laboratories and law enforcement agencies be certified by nationally recognized certification organizations, requiring the audio or videotaping of all interrogations in potentially capital cases, and implementing lineup procedures that protect against incorrect eyewitness identifications.

In addition to making these necessary reforms, the Governor of Ohio should create a commission, with the power to conduct investigations, hold hearings, and test evidence, to review claims of factual innocence in capital cases.  This sort of commission, which would supplement the clemency process, is necessary, in large part because current procedural defaults and inadequate lawyering have prevented claims of factual innocence from receiving full judicial consideration and the clemency process currently is not equipped to handle them.

2. Ohio should ensure that all capital defendants and death row inmates who are poor receive competent lawyers.

In the United States, criminal defendants who are poor are entitled to attorneys. Although Ohio does provide indigent defendants with counsel at trial, on direct appeal, and in state post-conviction proceedings, the State does not have the safeguards in place to ensure that defendants and death row inmates who are poor receive an attorney who can competently represent them.  There are a number of reasons for this, including that (1) the State falls far 

short of the qualification and training requirements set out in the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases for trial and appellate attorneys; (2) attorneys handling capital cases and appeals often are not compensated at a rate that is commensurate with the provision of high quality legal representation; and (3) attorneys often are provided insufficient access to experts and investigators or to information in discovery.

The State of Ohio should adopt increased attorney qualification and monitoring procedures for capital attorneys at trial and on appeal and qualification standards for capital attorneys in state post-conviction and any other related proceedings so that they are consistent with the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (ABA Guidelines). 

3. Ohio should exempt people with severe mental disabilities from the death penalty.

The State of Ohio has a significant number of people with severe mental disabilities on death row, some of whom were disabled at the time of the offense and others of whom became seriously ill after conviction and sentence. Although the State of Ohio excludes individuals with mental retardation from the death penalty, it does not explicitly exclude individuals with other types of serious mental disorders from being sentenced to death and/or executed. 

4. Ohio should eliminate racial and geographic bias from its death penalty system. 

While there has been recognition that racial and geographic disparities may be present in Ohio’s capital system, including by The Ohio Commission on Racial Fairness and the Associated Press, Ohio has not studied the issue of racial and geographic bias in capital sentencing or implemented reforms designed to help eliminate the impact of race and geography on capital sentencing.  In an attempt to quantify the problem, the ABA, as part of its assessment, conducted a racial and geographic disparity study which looked at death sentences in Ohio between 1981-2000 and found that those who kill Whites are 3.8 times more likely to receive a death sentence than those who kill Blacks and that  the chances of a death sentence in Hamilton County are 2.7 times higher than in the rest of the state, 3.7 times higher than in Cuyahoga County, and 6.2 times higher than in Franklin County.

Ohio should provide increased discovery in state post-conviction.  

Despite the fact that a death-sentenced inmate must allege all available grounds for relief and state the specific facts that support those grounds for relief prior to obtaining an evidentiary hearing in state post-conviction, the State of Ohio denies petitioners access to the discovery procedures necessary to develop post-conviction claims.  This is exacerbated by the fact that Ohio statutes and case law prohibit a petitioner from using the public records laws to obtain materials in support of post-conviction claims in spite of the fact that anyone else, including reporters can and do obtain these documents.  Furthermore, it appears that should the petitioner somehow obtain evidence in support of his or her claims through the public records process, the records cannot then be offered as attachments in support of his or her post-conviction petition.

What do conservatives really need to know about this report?

• The report comes from a committee of the ABA called, "the American Bar Association's Death Penalty Moratorium Implementation Project." And you were expecting a different set of findings from this group? Like there was even a 1% chance that a group with this title wouldn't be opposed to the death penalty.

• This report isn't official ABA policy yet. Just a recommendation.

•  Take a look at the people who served on this committee. I found two Republicans on this panel (Merz), two Democrats, one professor who spends his time working to prove the innocence of death row inmates (and this isn't to say that his cause isn't noble--but does anyone think he could support the death penalty? ) and then a bunch of law professors (how many conservatives do you think you will find in this bunch?).

Actually there is an answer to that question. Besides the obvious Demoratic politicians, The Federal Election Commission's site allows one to find out who gave what to which party. Below are some tell-tale signs of the political leanings of this commission: (just as a note, the FEC information is public record)

Phyllis Crocker, an associate dean and professor at the Cleveland-Marshall College of Law (Contributed to John Kerry in 2004).  

Other members of the team include U.S. Rep. Stephanie Tubbs Jones-Democrat, 

State Sen. Shirley A. Smith-Democrat.   

Magistrate Judge Michael R. Merz, former Ohio Supreme Court justice and current Court of Claims Judge (Seems to be a Republican), 

Craig Wright, professor of law and faculty director of the Lois and Richard Rosenthal Institute for Justice (Mr. Wright donated to Republicans),

Ohio Innocence Project at the University of Cincinnati College of Law Mark Godsey (Donated to campaign of John Cranley, Democrat), 

University of Akron School of Law Prof. Margery M. Koosed (Donated to America Coming Together-liberal pac),

Cleveland-Marshall College of Law Dean Geoffrey S. Mearns (Donated to John Kerry and other Democrats),

Columbus attorney S. Adele Shank (Donated to Kilroy, Democrat),

and Columbus attorney David C. Stebbins (Donated to Kilroy, Democrat)

I could give a long rebuttal to this ABA report, but Hamilton County Prosecutor, Joe Deters' response to this report echo pretty much everything I could say. Here are the best lines from story at the Enquirer (and print edition), straight from Smokin' Joe Deters, Republican and Hamilton County Prosecutor who has apparently sent too many people to death row for the tastes of the good people at the ABA:

• "Tell me: Who isn't on death row that shouldn't be?"

• "They spent a lot of time and money on this study, yet nobody has ever talked to me." "You would think the prosecutor with more people on death row than any other county would have at least gotten a phone call. But that would have been too fair."

• "The commission is a liberal defense attorney dream team."

• "There is not a single active prosecutor on the committee. It included a former Ohio Supreme Court justice who vowed he'd never vote for the death penalty again, and it goes downhill form there."

• "These are people who don't believe in the death penalty."

Author: The Machiavellian
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