Ohio Death Penalty Moratorium

  NPR this morning is reporting U.S. Southern Ohio District Judge Gregory Frost's ordering  a 2-1/2 month moratorium following the troubled execution of Dennis McGuire in January. McGuire was the first person ever to be put to death with a combination of the sedative midazolam and the painkiller hydromorphone.

 “In light of the need for discovery and necessary preparations related to the adoption and implementation of the new execution protocol that became effective April 28, 2014,” Judge Frost wrote, “it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of any Ohio inmate issued by any court of the State of Ohio until August 15, 2014, or until further Order from the Court…. The parties shall work together to coordinate efforts so that the Court can set necessary deadlines following expiration of the stay.”

The Columbus Dispatch, Christian Science Monitor and Reuters also had articles.

Ohio Death Penalty Task Force Releases Final Report

 Word's out, and, as in the words of Cleveland’s Plain Dealer and others, “Ohio’s Supreme Court task force on the death penalty has come out recommending sweeping changes to the state's capital punishment system in its long-awaited final report.

 “The task force's 56 recommendations, which state policymakers likely won't act upon in the near future, include creating a panel under the Ohio attorney general that would have to approve death penalty charges before cases proceed, and paying particular attention to racial factors. It also calls for eliminating the death penalty when the defendant suffers from "serious mental illness," as well as in cases of kidnapping, rape, aggravated arson, aggravated robbery, and aggravated burglary; and allowing the death penalty only in cases where the crime is proven by DNA evidence, a filmed confession, or other video footage.”

  Court News Ohio reported Chief Justice Maureen O’Connor indicated she would review the 76-page report and offer her views on the specific recommendations at a later date, saying in part that “Thoughtful Ohioans of good will may disagree on whether we should have the death penalty, but no one can disagree that as long as Ohio does have a death penalty we should have the fairest and most reliable system possible…”

  An equally long dissenting report, also released, authored by two county prosecutors and a deputy attorney general, claimed the task force had an agenda to abolish the death penalty outright -- something that wasn't on the table for the panel to consider.

  As the Supreme Court’s task force releases its study, the Plain Dealer also had an article on a poll conducted by Quinnipiac University between May 7 and May 12 of 1,174 registered voters finding “Ohio voters favored the death penalty, 69% – 25%  for persons convicted of murder -- but when offered a choice, 43 percent of voters favor the death penalty and 40 percent favor life in prison with no chance of parole, while 9 percent favor life in prison with a chance of parole, a total of 49 percent for the two life options.”

  Quinnipiac University is a private, nonsectarian, coeducational university located in Hamden, Connecticut, which conducts public opinion surveys in Pennsylvania, New York, New Jersey, Connecticut, Florida, Ohio, Virginia, Iowa, Colorado and the nation as a public service and for research.

  Then we have NBCNews reporting that according to a survey of 800 adults by Hart Research and Public Opinion Strategies for them in that same time frame between May 7-10,  “the botched lethal injection execution of Clayton Lockett in Oklahoma this past April  has not chipped away at  America’s public's support of the death penalty, although two-thirds of voters would back alternatives to the needle, and one in three people say that if lethal injections are no longer viable — because of drug shortages or other problems — executions should be stopped altogether…..But many others are open to more primitive methods of putting prisoners to death: 20 percent for the gas chamber, 18 percent for the electric chair, 12 percent for firing squad and 8 percent for hanging.”

  USAToday and others are also reporting on the U.S. Supreme Court’s blocking the execution of convicted Missouri murderer yesterday evening rather than risk another in what has become a series of botched lethal injections, “a stark reversal from the court's practice of denying last-minute appeals by death row inmates. That could mean a majority of justices are concerned about a shortage of drugs that has forced states to rely on unregulated compounding pharmacies. Some states have refused to say where they get their drugs or specify which drugs are used.”

  And in the meantime, there are no less than four bills in the Ohio legislature attending to the issue: HB385 (introduced  Jan. 22) and SB293 (introduced May 13) seek the outright abolishment of the death penalty; SB183 would - To provide that a defendant cannot be executed if the defendant's race was the basis of the decision to seek or impose the death penalty, to permit a defendant to file a motion alleging that the defendant's race was the basis of the decision to seek or impose the death penalty, to permit a defendant to establish that the death penalty was sought or imposed on the basis of race in the defendant's case by showing that race was a significant factor in decisions to seek or impose a sentence of death in the state, the county, or the prosecutor's office at the time that a sentence of death was sought or imposed in the defendant's case…  HB244, on the other hand (introduced last Oct. 10, 2013), would make the statutory authorization and procedure for imposing a sentence of death apply to rape, sexual battery, and unlawful sexual conduct with a minor when the offense is committed by an offender who previously has been convicted of, pleaded guilty to, or been adjudicated a delinquent child for committing any of those offenses or the former offense of felonious sexual penetration….

Ohio proposed adult guardianship standardized practices

 Following up on our post last Wednesday about the Supreme Court’s proposed standardized practices for Ohio adult guardianship, the Columbus Dispatch over the weekend had an article relaying that, “Thousands of Ohio’s most vulnerable residents are trapped in a system that was created to protect them but instead allows unscrupulous guardians to rob them of their freedom, dignity and money, and even judges overseeing the system acknowledge that it is broken, that it has ripped apart families, rendered the mentally ill voiceless, and left some elderly Ohioans dying penniless in nursing homes.

  “The system, which is supposed to look out for the health and well-being of the elderly, the mentally disabled and children, is directed by the probate judges of the state’s 88 counties, but, for lack of detailed guidelines from the state, the counties at this point have 88 different ways of overseeing guardians and their wards.

 “The Supreme Court recognized the problems and assigned a committee nearly eight years ago to come up with rules,” the Dispatch’s article continues, “(but) this year, the committee finally put forward a plan that falls far short of national standards and what advocates say is necessary to protect vulnerable Ohioans…. (and) that lack of standards and accountability for guardianships puts Ohio far behind other states, such as Indiana and Tennessee, which recently enacted laws to strengthen their guardian systems.”

  The paper, having conducted a yearlong investigation, found that without significant changes in the guardianship system, Ohioans will see more neglect and abuse of those who are supposedly being protected, a survey of Ohio’s probate courts, for example, finding that nearly 90 percent do not require a credit check for prospective guardians, and as many as 61 percent  not requiring criminal-background checks, opening the door for felons to become guardians entrusted with the assets and care of vulnerable people. “More than 80 percent of Ohio probate courts do not conduct financial audits or random in-home inspections, according to 72 of 88 counties that responded to the Dispatch survey last fall, and more than two-thirds of the counties do not track cases that had been investigated for possible wrongdoing or that had been forwarded to local law-enforcement agencies — cases that likely deserve extra scrutiny.”

 One large factor is the lack of guardian training, and nearly 60 of the Ohio probate courts surveyed indicated not requiring training to be a guardian. In counties that do, training programs vary from 30 minutes to eight hours.

  Again, for those interested, the Supreme Court is entertaining comments on recommendations until June 25. More information is available from Ohio News here.

Ohio Supreme Court considering aspects of sealing criminal records

  Sharlene Aguirre was convicted in 2001 for theft from a Columbus company that operates gift shops. Pleading guilty, she was sentenced to five years of community control, ordered to pay the company $2,000 and $32,562 to two insurance companies.

  The Cleveland Plain Dealer earlier in the week related her community control ended in 2007, and in January 2012 she sought to have her conviction expunged. At the time she had repaid the crime victim, the company that owned the gift shops, but still owed the third-party insurance companies $14,152.

 The trial court nonetheless granted the application to seal the record of conviction, according to court documents,  because the restitution had been ordered to an insurance company and Aguirre had paid a substantial portion of the remaining restitution.

  The State, however, appealed, asserting that the trial court granted her application to seal her conviction prematurely because she had not been finally discharged from her conviction, under R.C. 2953.32, rendering her ineligible to seal the conviction. The Tenth District affirmed the trial court’s ruling on March 5, 2013, saying "the trial court interpreted the community control provision as it now stands, placing victims and private parties into a state judgment collection agency if they need or choose this remedy" and that denying the defendant's request to seal her conviction was "a continued punishment".

 On March. 8, 2013, the State filed an application for en banc consideration and review by the Ten District along with a motion to certify a conflict.
 
 The Tenth District Court of Appeals on May 2, 2013, journalized on May 7, 2013 certified the conflict to the  Court based on its decision in Aguirre and the Eighth District Court of Appeals' decision in State v. McKenney, 8th Dist. Cuyahoga No. 79033, 2001 WL 587493 (May 31, 2001), but by decision rendered on May 16, 2013, two judges of the court of appeals dismissed the State's en banc application as moot.

 The State is now filing a discretionary appeal (No. 13-876) and certified-conflict appeal (No, 13-870), which were consolidated for review. 

  The Plain Dealer’s article relays that the underlying issue is one in which prosecutors argue Aquirre’s case “should not have been viewed as "discharged," a requirement to have records sealed, until she met all terms of her sentence, and since she still owed money to the insurance companies, she was not yet eligible to have her record sealed. The insurance companies being third  parties is irrelevant. Lawyers representing Aguirre argue a person is “finally discharged” once released from the court’s supervision, and that, they say, happened when her court-supervised community control ended in 2007.”

  As significant is the fact that this is a certified conflict case as well, with the Court looking at resolving the issue between the Tenth District’s decision in State v. Aguirre, 10th Dist. No.12AP-415, 2013-Ohio-768, and those rendered by the Eighth District Court of Appeals in  State v. Wainwright,   8th Dist. No. 60491, 1991 WL 64303,  (Apr. 25, 1991),  State v. Wainwright, 75 Ohio App.3d 793 (8th Dist.1991), State v. Pettis,  133 Ohio App.3d 618, 622 (8th Dist.1999)9 and  State v. McKenney,  8th Dist. No. 79033, 2001 WL 587493 (May 31, 2001).

Oral arguments were held Wednesday, May 13, 2014.

Proposed Standardized Practices for Ohio Adult Guardianship Cases

 Court News Ohio yesterday briefed “The Ohio Supreme Court was considering new rules to promote standardized policies and practices in adult guardianship cases, designed to guide local courts to establish guardianships that meet best practices and are consistent with national trends in such cases, hold guardians accountable, and ensure that the best interests of vulnerable adults are protected.

 “Rules of Superintendence 66.01 - 66.09 have been in development since 2007 when the Supreme Court’s Advisory Committee on Children and Families convened a subcommittee on adult guardianship to draft minimum standards,” CNO reported, “with additional input being provided by the Ohio Association of Probate Judges. The proposed rules  are based on those minimum standards.”

  The public comment period that will end on June 25, 2014

  Comments may be submitted in writing to:
Diana L. Ramos-Reardon
Domestic Violence Counsel
Supreme Court of Ohio
65 South Front Street, Sixth Floor
Columbus, Ohio 43215

Or via e-mail including sender’s name & address to Diana.Ramos-Reardon@sc.ohio.gov

Proposed Rules

Southern Ohio District Court Rule Amendments

    Just a reminder that The United States District Court for the Southern District of Ohio has amended its Local Civil and Criminal Rules effective May 1, 2014. ( Amended Rules Here )

Ohio Foreclosure Rate Continues to Fall

  The Ohio Supreme Court last Monday reported the number of Ohio foreclosure cases filings dropped again for the fourth consecutive year -- down 40% in 2013 compared to the all-time high in 2009 and the lowest levels in 11 years.

  The Court’s news service reported the Court began collecting foreclosure data in 1990 when there were 21,692 foreclosures.  In the first 14 consecutive years through 2009 the number of foreclosure filings rose, peaking at 89,061 in 2009 before starting to fall off again. The 2013 total – 53,163 -- also represents a 40 percent decrease compared to that all-time high in 2009.

  All told, only four of Ohio’s 88 counties recorded an increase in 2013 (Jackson, Monroe, Paulding, and Pike). Cuyahoga County again led the state with 8,829 foreclosure case filings, although continuing to track the recent state slide.  Monroe and Shelby (46% drop), Gallia & Adams Counties (44%), and Wayne County (40.6%) showed the most reduction. Hamilton County had a 23.9% decrease in 2013 over 2012; with Butler (29.5%), Clermont (31.1%), and Warren (24.3%) following suit.
  
  CNO has linked access to a  complete county-by-county breakdown foreclosure case filing data for the last five years.

Supreme Court Denies Gun Control Case Session

 Reuters was among the many outlets reporting the U.S. Supreme Court’s declining to hear & weigh in on whether gun owners have a constitutional right to carry handguns outside the home in a challenge to a New Jersey state law that requires people who want to carry handguns to show they have a special reason before they can get a permit, and continuing to show a reluctance to wade back in on the issue in recent months, in also having declined to hear cases challenging similar regulations in New York and Maryland.

 “In the 2008 District of Columbia v. Heller case,” Reuters recounted, “the court held that the Second Amendment guaranteed an individual right to bear arms, and two years later in McDonald v. City of Chicago, that the earlier ruling applied to the states. (But) it has yet to decide whether there is a right to carry guns in public, a question left unanswered in its two most recent gun-related decisions.”

 The Christian Science Monitor yesterday related that “in his petition urging the high court to take up the case, appellate lawyer Alan Gura said the Third Circuit’s restrictive view on the right to bear arms outside the home for self-defense was in conflict with decisions from five other federal appeals courts and four state supreme courts -- the Second, Fourth, Fifth, Ninth, and Seventh Circuits and the supreme courts of Illinois, Idaho, Oregon, and Georgia having held or assumed that the Second Amendment includes a right to carry a handgun outside the home for self defense -- adding that the highest courts in Maryland, Massachusetts, and the District of Columbia had embraced the more restrictive view upheld by the Third Circuit in the New Jersey case.

 New Jersey stated its position in saying “(Its) Handgun Permit Law, N.J.Stat. Ann. § 2C:58-4, governs permits to carry handguns, “the most closely regulated aspect” of New Jersey’s gun control laws. In re Preis, 573 A.2d 148 (1990). Applicants for a permit to carry a handgun, whether openly or concealed, must demonstrate that they: (1) are not disqualified by a disability enumerated in N.J. Stat. Ann. § 2C:58-3(c), (2) are thoroughly familiar with the safe handling and use of handguns, and (3) have a “justifiable need” to carry a handgun. N.J. Stat. Ann. § 2C:58-4c. The justifiable need requirement must be considered on a case-by-case basis. In re Borinsky, 830 A.2d 507, 516 (N.J. Super. Ct. App. Div. 2003). Justifiable need means the “urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun.” N.J. Admin. Code § 13:54- 2.4(d)(1) (2012); see also In re Preis, 573 A.2d at 152; Siccardi v. State, 284 A.2d 533, 540 (N.J. 1971).”

Ohio Supreme Court Glossary of Legal Terms

“The court held in a per curiam opinion that a peremptory challenge during voir dire was barred by precedent --- The court this morning ruled sua sponte that the motion for summary judgment was barred by res judicata… Say what?

   Obviously not everyone skimming the Ohio Supreme Court’s Court News has a law degree or knows Latin, so last Friday – with Supreme Court Justice Judith Ann Lanzinger’ having had played a key role in its development – CNO launched the court’s first interactive online glossary designed specifically to help the public understand the legal terms that courts and lawyers frequently use.

  “The new tool features pop-up definitions that appear when a reader hovers over underlined legal words in articles on the CNO web site, or via browsing the glossary in its entirety -- currently contains 160 definitions translating legal jargon into simple English. Along with the glossary, an instructive service for the bookish crowd – “Legal Word of the Week.” – added a weekly “featured legal word and definition” to CNO’s Facebook & Twitter pages.

  CNO is also  encouraging readers to suggest legal terms they think should be included in the glossary. Staff will review submissions and update the glossary with useful entries. Submissions may be sent to CNO@sc.ohio.gov

Grand Lake St. Marys

 The Columbus Dispatch this morning reported the state’s department of natural resources’s appearing before the Supreme Court again yesterday in answering why it should not be held in contempt – again --  nearly five years after it was ordered to pay damages to property owners near Grand Lake St. Marys whose properties were flooded because of the widening of a dam spillway.

  “The case stems from changes to a dam spillway at Grand Lake St. Marys near Celina in 1997 that worsened flooding along Beaver Creek in which 87 property owners, largely farmers, won a 2009 ruling entitling them to property damages, and the agency’s denying that it violated the court’s orders accompanying a rare ruling in late 2012 that the agency and its director were in contempt for defying its order to compensate the landowners.” (Dispatch had more at that time)

The present article relates the lawyer representing the landowners' saying state officials have “blatantly violated” the court’s orders by attempting to introduce a new flooding study to justify paying less in damages, while the Department of Natural Resources, said the state has not caused delays in moving damage cases to trial in “one-judge” Mercer County and that (the new study) is more accurate than prior appraisals based on the “500-year flood” in 2003.
 
Grand Lake St. Marys is a state park in Mercer and Auglaize counties near Celina about halfway up the state’s western border with Indiana and  the largest inland lake in Ohio in terms of area, but very shallow with an average depth of only 5 to 7 feet making it increasingly susceptible to high levels of lake pollution, E. coli bacteria, and related algae levels. The Ohio Environmental Protection Agency considers it "impaired" due to "stream channelization, drainage tiles, loss of floodplains and streamside vegetation, manure runoff and untreated sewage flowing from failing home septic systems and small communities without any wastewater collection or treatment." (More on Wikipedia)

Ohio Supreme Court’s docket