Capital cases are different

Back in 2004, in State v. Harwell, I convinced the Ohio Supreme Court that any case charging aggravated murder and a death specification is a capital case entitling the defendant to a variety of special procedural protections even if death itself is, for some reason, not a sentencing option.

As a result, when David Clinsksdale was tried a second time for aggravated murder with a death specification, even though he couldn't be sentenced to die, he was entitled to the special protections of capital cases.

That's the sort of thing that can sometimes make a real difference at trial. You get two appointed lawyers, and while they may or may not be good, at least they've got some experience. You get at least some access to resources, investigators, and experts. You probably have more time to prepare for trial. You get, maybe, a better opportunity to conduct voir dire, and you certainly get a couple of extra peremptory challenges. You get a clear opportunity to make a full-scale presentation about sentencing.

So when David Clinksdale was tried for aggravated murder with death specifications a second time - even though death was no longer a sentencing option, he got some of those protections. He also got, ultimately, a sentence of from 53 years to life in prison. But the sentence came later. First came the jury deliberations, and they didn't go according to plan.

The law at the time, it's been changed since, was clear. Once the jury begins deliberating, any alternate jurors are excused. If a problem devlops, if a juror cannot continue deliberating - whatever the reason - either the case goes forward with 11 jurors (that only happens if the defendant agrees) or there's a mistrial and they start over.

It's also clear that the judge cannot meet with jurors on her own and make decisions about excusing jurors without giving the lawyers a chance to voice opinions.

In this case, it seems both of those things went wrong.

One juror, apparently the only juror who, according to other jurors, was refusing to vote for guilt, was excused for a medical reason - perhaps heart palpitations. Perhaps the judge didn't discuss the decision with counsel, or maybe Clinkscale's lawyer agreed. The record isn't clear. Nor does the record indicate whether the judge discussed with counsel replacing the jury with an alternate, though an alternate was substituted into the jury. The newly constituted jury found Clinkscale guilty.

Three weeks later, they met for the sentencing hearing and, for what may be the first time, Clinkscale's lawyers objected, sort of, to what happened. Good for them, but a bit late. See, Ohio has what's known as the "contemporaneous objection rule," which means simply that you have to object to something at the time it occurs (so the judge can fix it). Complaining about the dismissal of one juror and the substitution of an alternate three weeks after it happened doesn't seem to qualify.

Clinkscale lost in the court of appeals. But his lawyer, Bill Lazarow, convinced the Ohio Supreme Court to take a look at the case, and then something remarkable happened. Clinkscale won.

You wouldn't expect it to begin with. You particularly wouldn't suspect if when the record isn't particularly informative and Clinkscale's lawyers didn't try to fill in the gaps. You might get a hint of it if you watch the oral argument (which you can see here) and know the court personnel. After all, Justice O'Connor is clearly very disturbed by what the judge did, and she's normally a strong vote for the state. But still, a win? Under these circumstances.

Death penalty law is special because, as the Supreme Court explained more than thirty years ago, death is different from other punishments. Death wasn't on the table here, but because of Harwell, this was a capital case. And when it reached it's decision in State v. Clinkscale, the Ohio Supreme Court, by a 4-3 vote, said that capital cases really are special.

As Justice Lanzinger began the substantive part of the majority opinion:

Our analysis of this case is guided by the fact that Clinkscale was charged with a capital offense.

In the next paragraph, she wrote that

the unique nature of capital cases demand a heightened level of care in constructing the record to guarantee regularity of the proceedings and assist in appellate review.

And although the general rule is that when the record doesn't demonstrate that there has been error that was harmful, it must be assumed that what happened was proper,

[T]he important constitutional rights at issue here demand that we not apply that presumption in this case.

As a longtime appellate lawyer, one who's argued a number of cases in the Ohio Supreme Court, won some, lost some, I can only say, "Wow!"