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 Joe Deters On ABA's Execution Moratorium: Liberal Hogwash

CINCINNATI (TDB) -- Hamilton County Prosecutor Joe Deters -- whose jurisdiction accounts for 37 of the 184 people on Ohio's death row -- tells the hometown Cincinnati Enquirer that the American Bar Association panel was stacked with liberals. Deters is a Republican and supports capital punishment.

From today's Enquirer:

"This commission is a liberal defense attorney dream team. There is not a single active prosecutor on it. It included a former Ohio Supreme Court justice [Craig Wright] who vowed he'd never vote for the death penalty again, and it goes downhill from there.

"You would think it would have at least one prosecutor, somebody . . . Instead, it's packed with a bunch of liberals. There conclusion should come as no surprise. These are people who don't believe in the death penalty. They know Ohioans support it and can't change the law so they try to subvert the law."

Here's a list of the ABA panel members:

1. Craig Wright, former Ohio justice now Ohio Court of Claims judge.

2. U.S. Rep. Stephanie Tubbs Jones, Cleveland Democrat and former Cuyahoga County prosecutor.

3. State Sen. Shirley Smith, Democrat, Cleveland.

4. S. Adele Shank, Columbus attorney in private practice and former general counsel Ohio Public Defender's office.

5. U.S. Magistrate Michael Merz, Dayton.

6. Geoffrey S. Mearns, dean, Cleveland-Marshall College of Law, Cleveland State University.

7. Margery Koosed, University of Akron law professor.

8. Mark Godsey, University of Cincinnati law professor and director of the school's innocence project.

9. Phyllis Crocker, associate dean, Cleveland-Marshall College of Law, Cleveland State University.

10. David Stebbins, Columbus defense lawyer.

Ohio-Based U.S. Judge In January: Said Death Penalty Should Halt

CINCINNATI (TDB) -- At the start of this year, a federal appeals court judge said he would no longer vote to uphold any death penalty convictions from Ohio. Hardly anybody noticed. Now the American Bar Association shares many of the same concerns that were initially raised by Judge Boyce F. Martin. From The Daily Bellwether's archives:

Wednesday, January 17, 2007

U.S. Judge Boyce Martin: Abandon The Death Penalty
CINCINNATI (TDB) -- Federal appellate Judge Boyce F. Martin's opposition to the death penalty is so vehement he contended in an Ohio case this week it should be completely abandoned. Martin says most court-appointed lawyers defending accused murderers are underpaid and inexperienced. He believes their clients are sentenced to die even when there is a possibility of innocence.

''In our capitalist society, you get what you pay for," Martin said. "We are yet to show a willingness to adequately compensate members of many professions (public school teachers, military and emergency response personnel, social workers, and yes, attorneys for defendants who represent indigent defendants, to name a few) whose competent performance is most important to the functioning of our democracy."

Martin, 71, was appointed by Democratic President Jimmy Carter. He serves on the 6th Circuit U.S. Court of Appeals in Cincinnati and has been increasingly blunt in his criticism of capital punishment. He was pungent in his dissent Tuesday after the court refused habeas corpus for Michael W. Benge, of Hamilton, Ohio. Benge had a crack cocaine habit. He was convicted of killing his live-in girlfriend in 1993. The woman, Judith Gabbard, was dumped in the Miami River. He has been on Ohio's Death Row for nearly 14 years.

Martin postulates Benge may have been sentenced to death simply because his trial was held in Butler County, which may be stricter than others in Ohio. That make the death penalty arbitrary and unfair in his view. Martin said he has become a disciple of the late Supreme Court Justice Harry Blackmun, who believed capital punishment should be abandoned.

"As I have previously stated, 'I know my place in the judiciary, and I recognize that unless and until the Supreme Court deems it necessary to address what I (like Justice Blackmun and others) view as the inherent arbitrariness of the death penalty, my reflections on this topic will only be observations without the force of law. In the meantime, I add my voice to those dissenters who have hoped the Supreme Court 'eventually will concluded that the effort to eliminate arbitrariness while preserving fairness in the infliction of death is so plainly doomed that it -- and the death penalty -- must be abandoned altogether.'" (Quoting Blackmun.)

The entire text of the Benge ruling is HERE. Judge Martin's 7-page dissent begins on Page 13.

ABA Says Ohio Should Suspend Executions: New Report Finds State Death Penalty Deeply Flawed

CINCINNATI (TDB) -- The executive summary of the American Bar Association Report is 42 pages long and it calls for an immediate moratorium to stop the death penalty from taking place in Ohio. It contends the the existing process does not guarantee accuracy, fairness and is racially biased. It says the governor should appoint a special commission to review claims of factual innocence in Ohio death cases, and that all police interrogations of suspects who face death charges should be taped, preferably on video.

"Despite the best efforts of a multitude of principled and thoughtful actors who play roles in the criminal justice process in the State of Ohio, our research establishes that at this point in time, the State of Ohio cannot ensure that fairness and accuracy are the hallmark of every case in which the death penalty is sought or imposed. Basic notions of fairness require that participants in the criminal justice system ensure that the ultimate penalty of death is reserved for only the very worst offenses and defendants. It is therefore the conclusion of the members of the Ohio Death Penalty Assessment Team that the State of Ohio should impose a temporary suspension of executions until such time as the State is able to appropriately address the issues and recommendations throughout this report, and in particular the executive summary."

Currently, Ohio has 184 prisoners awaiting execution. The state prison system link above also leads to information about those who have been executed, and gives a history of capital punishment in Ohio.

Meanwhile, Ohio State University law professor Doug Berman has a review of the ABA report on his legal blog Sentencing Law and Policy about the reforms, and he wonders if anybody will pay attention.

"I have complained in the past that these mega-reports represent an extraordinary investment of time and energy trying to ensure that a bunch of murderers get to spend a bit more time locked in a cage before they die. My particular concern what that these very detailed reports seem unlikely to get much traction (or even be read) in states with politicians that are very committed to the death penalty. In Ohio, however, he have a governor [Strickland] and attorney general [Marc Dann] and more that a few state legislators who have repeatedly expressed reservations about capital punishment. The Ohio reaction to this ABA report should be a good test of whether all this work by the ABA can truly be consequential."