Cincy Enquirer: Amid Death Penalty Debate, It Didn't Report A Death Sentence Was Overturned

CINCINNATI (TDB) -- The Cincinnati Enquirer today carries a lengthy defense of capital punishment in Ohio by Hamilton County Prosecutor Joe Deters, whose Op-Ed article appears under the title "Criticism of Ohio's death penalty is way off the mark." Curiously, the Gannet Co. Inc. morning daily failed to report this weekend that the Ohio Supreme Court overturned a death penalty conviction because favorable evidence was withheld from the defense by prosecutors in Cleveland.

Deters took issue with an American Bar Association study issued Sept. 25 that calls for a moratorium on death sentences in Ohio. The Ohio Supreme Court vacated the aggravated murder conviction of Vernon Brown, saying he deserved a new trial because the original was not fair.

"We are not convinced, however, that Brown's s guilty verdicts and death sentences are worthy of confidence, for the errors by both the prosecution and defense cause us to question whether the jury's conclusions could have been fairly reached. The prosecution breached its duty to provide to the defense all evidence material to Brown's guilt or innocence. The defense attorney's also erred by failing to provide effective assistance of counsel."

The unanimous decision by the state's high court in Columbus cited the 1963 ruling in Brady v. Maryland by the United States Supreme Court. It said any evidence discovered by the state favorable to a defendant -- and is material to the case -- must be provided to the defense. In its call for a moratorium on capital punishment in Ohio, the American Bar Association expressed concern the death pealty does not guarantee accuracy, or fairness and is racially biased against blacks.

Ohio Prosecutor's Nifong Moment (II): 'Extreme Temperatures' Are Grounds For Convictions

CINCINNATI (TDB) -- Former Cleveland Law Director Subodh Chandra and city prosecutors acted aggressively to protect Ohio's children with their legal tactics in 2003 and 2004. They went after a boozer who put a two-year-old outdoors in sub-freezing cold after a post-Thanksgiving drinking bout. The child suffered no injuries from chill and snow, but the case still concluded with a guilty verdict of child endangerment. A state appeals court said a critical issue was: Does knowingly exposing a child to extreme weather conditions create a substantial risk to health and safety?

It sided with Chandra: Extreme weather is a risk.

The efforts to seek a conviction in Cleveland are in contrast with Clermont County Prosecutor Don White's decision not to take action in the death of Cecilia Slaby. The two-year-old perished Aug. 23 while strapped into her mother's Mercedes on a blazing summer day. White's office says the mother, a school administrator, accidentally forgot about the child and didn't heedlessly disregard a known risk. The risk: Extreme temperature in a vehicle parked outdoors in the August heat.

The complete text of the 12-page decision from Cleveland is available(PDF) from the Ohio Supreme Court. Chandra's team argued that the presence of severe weather automatically creates a strong possibility of harm to a child. It also contended the man locked the door when he kicked the two-year-old out into the cold with her mother, which created a "culpable mental state" required for conviction. The 8th District Ohio Court of Appeals agreed:

"Exposure to extreme temperatures for a relatively extended period of time creates a substantial risk to the health or safety of a child. A rational trier of fact could have found that sub-freezing temperatures created a substantial risk to the health or safety of the child despite the fact that she was with her mother, and despite the fact that she was wearing a coat . . .

"The snow and low temperatures that night gave (the defendant) good reason for expectation or belief that the two-year-old child could suffer from exposure. Moreover, based on evidence that the mother and child were forced out, a rational trier of fact could reasonably conclude that (the defendant) perversely disregarded, with heedless indifference to the consequences, the known risk that the two-year-old could suffer from exposure."

Mom and daughter walked about eight blocks that night in Cleveland to a pay phone, where they dialed 911 and were rescued by police. There was no frostbite or medical damage, although the little girl urinated in the pajamas she wore under her winter coat. The conviction for child endangering led to a $150 fine, a suspended 90-day jail sentence and a year of probation with substance abuse assessment and counseling.

Ohio-Based U.S. Appeals Court: Tells D.C. Supremes We're Not Changing Death Case Ruling

CINCINNATI (TDB) -- The death row conviction of Kenneth Richey, a Scot who has been locked up awaiting execution in Ohio for 20 years, has long stirred a row in Europe and Britain. Officials on the other side of the Atlantic view capital punishment as barbaric, and it has been outlawed within the European Union.

Today, the 6th Circuit U.S. Court of Appeals in Cincinnati refused to back off a Jan. 25, 2005 ruling that ordered a new trial for Richey on grounds his original defense lawyer was ineffective. In December 2005, the Supreme Court reversed the 6th Circuit's holding that Richey had been deprived of constitutionally effective representation. Now a 2-1 majority of the 6th Circuit has responded by saying "the record supports our original conclusion granting Richey habeas relief because his trial attorney did not function as counsel guaranteed by the Sixth and Fourteenth Amendments."

The full text of the 19-page decision is available here. It includes a dissent by U.S. Circuit Judge Eugene E. Siler Jr., of London, Ky., who voted to uphold the conviction.

Amnesty International says Richey has "one of the most compelling cases of innocence it has seen" and the British government of Tony Blair intervened legally on behalf of the former Edinburgh, Scotland resident. The British government has also consulted with Richey's legal team.

He was convicted of setting an arson fire that killed Cynthia Collins, a 2-year-old, after a night of partying, drinking and smoking marijuana in Columbus Grove, a small town in northwest Ohio. According to prosecutors, the fire was intended as revenge at Richey's girfriend, who had recently broken up with him and wanted to begin a romantic relationship with another man. Richey was described as acting in a jealous rage.

The appeals court said Richey's trial lawyer declined to present expert testimony that could have disputed arson as the cause of the fire. There is some evidence that the apartment blaze was not set, but came from cigarette left smoldering in the cushions of a couch. The appeals court said:

"There can be little doubt that Richey was prejudiced by his counsel's deficient performance. There is a reasonable probability that had counsel mounted the available defense that the fire was caused by an accident, and was not the result of arson at all, the outcome of the guilt or the penalty phase would have been different. Although the circumstantial evidence alone might have led to a conviction, the question before us is not the sufficiency of the evidence, but of undermining our confidence in the reliability of the result. Confronted with evidence debunking the state's scientific conclusions, the trial court might have had a reasonable doubt about Richey's guilt, especially where the prosecution's case depended on a cast of witnesses whose lives revolved around drinking and partying and some of whom might have had their own motives for implicating Richey."

U.S. Circuit Judge R. Guy Cole Jr. of Columbus wrote the decision.

Ohio Supreme Court: Gay Marriage Amendment Doesn't Nix Domestic Violence Laws

COLUMBUS (TDB) -- Breaking news with the full-text of a major legal decision: The Ohio Supreme Court ruled(pdf) that a state domestic violence law was not gutted by the 2004 constitutional amendment outlawing gay marriage. The portion of the law that was under legal attack involved couples living together outside matrimony, and questioned whether a punch or scratch or shove, or other physical assault, delivered in such a relationship still was a criminal act. The Supreme Court said it is.

If Bogus, Cincy Blog Allegedly By GOP Chair May Be 'Invasion of Privacy'

COLUMBUS (TDB) -- An Ohio Supreme Court ruling last month for the first time recognized in the state a right to seek damages in cases where publicity portrays the person in a "false light." The case might have a bearing on a satirical blog called AngryGeorge, which is purportedly written by Hamilton County GOP Chairman George Vincent. Among other things, it has described him as using drugs.

The Bellwether reported Thursday that AngryGeorge was up and running. In a 5-2 decision June 6, the Ohio Supreme Court said it was concerned about the First Amendment, but said privacy rights were important, too.

"In Ohio, we have already recognized that a claim for invasion of privacy can arise when true private details of a person's life are publicized. The right to privacy naturally extends to the ability to control false statements made about oneself. Without false light, the right to privacy is not whole, as it is not fully protected by defamation laws."

Justice Paul Pfeiffer, who wrote the decision, also said:

"In Ohio, one who gives publicity to a matter concerning another that placed the other before the public in a false light is subject to the other for invasion of privacy if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed."

Libel and defamation are difficult for anyone to prove. But they are virtually impossible cases for public officials and public figures to win, and GOP chairman Vincent would probably fall into both categories. However, false light might give him a door to step through if he chooses to take legal action. So far, there's been no public indication of his thinking. (All this is predicated on one fact: Vincent is not really AngryGeorge.)

Many legal scholars have warned the blogosphere -- which by nature has been rough-and-tumble with anonymous snark and unrestrained speech -- might be ripe for lawsuits that challenge its Wild West frontier nature. Consider this: Could a blog that is found taking liberties with the identity of its become the scene of a legal shootout at the OK Corral, could its appearance end up taming the Wild West?

The full-text of the Ohio Supreme Court ruling is available HERE (pdf) and grew out of a particularly nasty neighborhood feud in Stark County. One set of neighbors posted handbills at a school and job site accusing the others of vandalism. There was more to it than that, of course, but the allegations of criminal conduct were major parts of the false light claims.