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."

U.S. Appeals Judge Boyce Martin: Rips Cuyahoga Death Sentence

CINCINNATI (TDB) -- A federal appeals court judge waging a legal war against the death penalty delivered his strongest protest Friday. U.S Circuit Judge Boyce F. Martin said Ohio's elected prosecutors and judges are degrading the state's criminal justice system to win and preside over convictions. Martin said too many courthouse officials pandered to public opinion to appear tough on crime.

Martin wanted the 6th Circuit U.S. Court of Appeals in Cincinnati to overturn the 1988 Cuyahoga County conviction of Billy Slagle. He got one other judge on the 15-member court to vote with him. That didn't stop his tirade -- Martin said jurists and prosecutors are sending people to the death chamber for sustained publicity in newspapers and TV, and for the political advantages it gives them when they run for reelection.

''Ohio's criminal justice system is only degraded by prosecutors who continue to disregard the ethical duties of the legal profession in order to increase their 'batting average' of death sentences and other convictions. Through this practice prosecutors are able to state that they are 'tough on crime,' allowing them to secure more votes, remain in office, and continue their conviction-oriented (rather than justice-oriented approach," Martin said in his dissent.

He said the state's judges are not immune from the same political motives because they have to run for office. He suggested appointed judges would be more interested in fairness over headlines.

"Ohio's policy of electing judges subjects them to the same political pressures that affect prosecutors,'' Martin added. "So long as the Supreme Court deems the death penalty permissible under the Constitution, and so long as prosecutors and state court judges are subject to political pressure to be 'tough on crime' and pro-death penalty, the politicization of the death penalty will only accelerate."

Martin, 71, was appointed by Democratic President Jimmy Carter in 1979. He said last month he will no longer vote to uphold a death penalty conviction.

Martin said Slagle's Cleveland trial was biased. He contends Slagle should receive a new trial, and that sending him to his death would be a major injustice. Information about Slagle, along with a recent photo, can viewed by clicking here on the Ohio prison system's offender search site.

The complete text of Judge Martin's dissent is a strongly worded document. He says prosecutors ought to have their law licenses challenged for acting in their "self-interest."