CINCINNATI (TDB) -- A federal appeals court ordered a new sentencing hearing for Ohio death row inmate Von Clark Davis, who claims he was denied an opportunity to introduce mitigating evidence about good behavior behind bars. Davis was convicted of aggravated murder in 1984, but won a reversal in the 1990s from the Ohio Supreme Court. He was sentenced to death again in a procedure that the 6th Circuit U.S. Court of Appeals said was faulty.
Davis contends he was not allowed present evidence he was a model inmate during the five years he spent on death row between the first and second sentencing hearings. He was convicted of shooting Suzette Butler several times in the head. She was found by police deceased on the sidewalk outside American Legion Post 520 in Hamilton, Ohio, in December 1983.
Two witnesses on a stroll admiring Christmas lights saw a man and woman arguing outside the Legion hall, then heard two gunshots. Davis had been released on parole in 1980 after serving a 10-year sentence for the 1970 stabbing death of his wife, Ernestine.
Circuit Judge Martha Craig Daughtrey wrote the opinion (Case No. 02-3227) that said Davis should have been allowed to present evidence about his good conduct on death row.
"Although there could conceivably be some questions abut the relevance of such evidence in the abstract, the record in this case establishes without doubt that it was highly relevant to the single aggravating factor relied upon by the state -- that future dangerousness should keep Davis on death row,'' Daughtrey said.
The full-text of the decision is available HERE.
An interesting twist is that Davis' case was not tried by a jury in Butler County. It was decided by a three-judge panel after he waived a jury trial. He now wants to withdraw that waiver and have his fate decided by a jury. The federal appeals court said he probably has a right to do so, though it did not directly address that issue:
"Granted, the resentencing hearing that we order today will not constitute a 'trial' in the sense that the petitioner's guilt or innocence is again at issue. However, in this case, the proceeding can indeed be considered the functional equivalent of 'trial' because, unlike sentencing in a non-capital case, it will take the form of an evidentiary hearing on the question of whether Davis should receive the death penalty or some form of a life sentence."
This ruling makes it clear that the fate of the death penalty in Ohio is under close scrutiny in the federal courts. It is also getting deepened attention from new Democratic Gov. Ted Strickland, who has questions about its application and fairness and has postponed three executions.