Ohio Death Penalty Update -- January 2012

This is going to take some doing, but since Ohio’s death penalty is gotten back in the news following District Court Judge Gregory Frost’s postponement of the execution of Charles Lorraine two weeks ago, saying the Ohio Department of Corrections failed to follow some of its own guidelines in the state's newest version of its execution rules, there’s been a whole lot going on. We’re going to try to provide some kind of update & overview.

Judge Frost was quoted in the Columbus Dispatch last Jan. 12 as saying, “It should not be so hard for Ohio to follow procedures that the state itself created. Today’s adverse decision… is again a curiously if not inexplicably self-inflicted wound.” Referring to the stay issued last July for Kenneth Smith, he wrote, “The latest events in this litigation invoke the saying that the more things change, the more they stay the same. Ohio created a new protocol and its agents indicated that they would comply with that protocol, presenting this Court with an interpretation of the protocol in which there are five core components from which they cannot vary. Ohio’s failure to stand by its representation that all possible deviations flow up to the Director means that, once again, “[i]t is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not. This [remains] nonsense.”

The Dispatch article further said Allen L. Bohnert, an assistant federal public defender who represents Lorraine, released a statement calling on Gov. John Kasich to issue a moratorium in light of “federal constitutional problems,” and … until such time as the state is able to adequately assure, not only Judge Frost, but the citizens of the State of Ohio, that it is able to comply with the U.S. Constitution and its own rules for executing its citizens.”

The State appealed the Southern District decision, but the Sixth U.S. Circuit Court of Appeals last Friday 13th. held that Charles Lorraine's execution, scheduled this week, should be delayed while changes and the reasons for them are reviewed. More than that, the Sixth Circuit said it “agreed with the district court that the State should do what it agreed to do: in other words it should adhere to the execution protocol it adopted. As the district court found, whether slight or significant deviations from the protocol occur, the State’s ongoing conduct requires the federal courts to monitor every execution on an ad hoc basis, because the State cannot be trusted to fulfill its otherwise lawful duty to execute inmates sentenced to death…” (Holding)

Trumbull County Prosecutor Dennis Watkins, according to an Associated Press article last Sunday, sent a second letter urging Gov. John Kasich to ask Ohio's attorney general to appeal the issue to the U.S. Supreme Court, arguing that the federal courts have wrongly interfered with Ohio executions. Attorney General DeWine in a posted statement said “"We do not believe the stay of execution the federal courts have imposed here is warranted under the Constitution, and want to give the U.S. Supreme Court an opportunity to review this case to ensure that there is a consistent constitutional approach to capital punishment. Ohio's execution process must comply with constitutional standards, and that should be the test as far as the federal courts are concerned."


Meanwhile…… The Dispatch, in a second article, reported that the task force commissioned by the Ohio Supreme Court to examine the state’s death penalty laws & protocols last November had its second meeting last week, saying the state had to better deal with geographical disparities, and that “curing geographical unfairness in capital-punishment cases may require a statewide commission, not county prosecutors, to make the decision when to seek the death penalty.”

Concurrently, the State Supreme Court granted a stay of execution for Denny Obermiller, who was to be executed Feb. 25th., last Friday. Michael D. Webb, indicted & convicted in 1991 on two counts of aggravated murder , four counts of attempted aggravated murder, six counts of aggravated arson; and one count of aggravated theft, remains scheduled to be executed on Feb. 22nd.. Webb has a parole board hearing scheduled for today, his attorneys arguing in a death-penalty clemency petition filed with the Ohio Parole Board that “arson evidence used to convict him has been scientifically proved false, according to the Columbus Dispatch this morning. A Cincinnati.com article further notes “Prosecutors say Webb hasn't introduced anything that federal courts didn't review and reject almost a decade ago.”

Lake County, Ohio, Common Pleas Court has another capital case in the works, the Cleveland News-Herald has been reporting. Joseph Thomas, 27, is scheduled to go on trial April 10 on charges of aggravated murder, rape, kidnapping, aggravated robbery and tampering with evidence. His attorneys last week filed a motion last week asking Common Pleas Judge Richard L. Collins Jr. to eliminate death as possible punishment, claiming the death penalty would be cruel and unusual punishment and is imposed in an “arbitrary and discriminatory manner” in Ohio. Assistant Lake County Prosecutor Charles Cichocki’s response has been that Thomas “offers no evidence that Ohio’s capital sentencing laws violate the U.S. or Ohio Constitutions… and that the Supreme Court of Ohio has repeatedly rejected claims that Ohio applies the death penalty in a racially discriminatory manner.”

Cleveland Plain Dealer columnist Mark Naymik last Sunday wrote about former Ohio Attorney General and 2006 gubernatorial candidate Jim Petro having laid out his views of the criminal justice system in his book, "False Justice: Eight Myths that Convict the Innocent," which, as the title implies, questions the fairness of our justice system and identifies flaws in how police and prosecutors handle evidence, especially in capital cases. Naymik says he “was recently drawn to the book because capital cases and the procedures we use to put people to death continue to make news here and around the country.”

Naymik quoted Petro as saying in an interview that he’d “bet certainly well over half the prosecutors in the country looking at this book would ultimately agree with most of the issues," he says. "There is another half who wouldn't. They will say this is the work of some liberal-leaning lefty. That's not the case. I am as much in favor of punishing the guilty as anybody, but I'm advocating for a greater degree of care on the part of every prosecutor."


Ohio House Bill 160, which would repeal the death penalty in Ohio, had its second hearing before the House Criminal Justice Committee last December 14th.. Testifying before that committee last month, the state’s longest sitting Supreme Court justice, Paul Pfeifer, offered a long list of reasons why the General Assembly should repeal the statute he helped write as a state legislator, calling the geographic inequity of capital sentences a “death lottery.”