Ties Go to the Grim Reaper - UPDATED

As I start to type this, Lawrence Reynolds has, it seems a safe bet, just about 36 hours left to live.


At 10 a.m. on Tuesday, employees of the State of Ohio plan to strap him to a table, attach IV tubes to his arms, and inject him with a massive does of thiopentol sodium, a barbiturate.  If all goes according to plan, around 10:30 a physician will certify that Reynolds has been killed.  The cause of death will be listed on the death certificate as "homicide."the murder will be complete


Aside from a few comments about impending executions and the demonstrated incompetence of Ohio's execution team, I haven't written about Reynolds.  I've never represented him.  I've never met him.  He's not quite faceless of course.  There's a scruffy beard and half smile as he stares at the camera in his official DRC photograph.  But I have only guesswork about the man.

Reynolds is an alcoholic.  He killed, there seems to be no question about it, Loretta Mae Foster, an apparently kindly and well-loved 67 year old neighbor and stole money from her purse to feed his addiction.  He'd be a fine example for Carrie Nation.  He had a tough background.  He has apologized for the murder and consistently expressed remorse, though the prosecutors don't believe the remorse genuine.  


With all respect to both Reynolds and, especially, Foster, none of that is particularly noteworthy.  We see those same things all the time in these cases.


More unusual, certainly in Ohio, is that lead counsel had been on the case just 2 1/2 weeks when they began picking the jury.  No competent criminal defense lawyer should agree to such a timetable,  frankly, none would.  Still, lead counsel in Reynolds' case did.  That should make you wonder, give pause.


But there's also this, and it's where I wanted to go and what I wanted to talk about.  


When it affirmed the conviction and death sentence back in 1998, the Ohio Supreme Court explained that the prosecutor committed misconduct during the sentencing phase of the trial, that it's impossible to determine whether the misconduct made a difference in the sentence, and that therefore the sentence should stand.


Here's the court's summary of what happened.

The state opened the penalty phase by calling Foster’s son, Michael Foster, as a “victim-impact witness.” Foster testified that he was an only child and that his father had passed away many years earlier, that his mother was from a large family and her house had been the gathering place for the family, and that his mother had touched “everyone’s life” and been a special part of their lives. When the prosecutor asked him to describe the effect his mother’s death had had on him, Michael became distraught and was unable to answer. He indicated that one of his daughters was getting married in July and that his mother had been looking forward to the wedding. Michael’s other daughter had once lived with Foster for a period of time. He testified that both granddaughters missed their grandmother very much.

The prosecutor incorporated the victim-impact testimony into his closing argument:

“He told you as best he can the effect this crime has had on himself and his family, and it is an extended family of Mrs. Foster. Considerations of the effect of a crime upon the victim, the victim’s family, are things you can think about in making a decision here. And I urge you to do that.” (Emphasis added.)

The misconduct was in the part of the prosecutor's statement that the court italicized.  Here's what the court said about it.

In his eleventh proposition of law, Reynolds contends that the prosecutor’s statement cited above amounted to misconduct. We agree that the prosecutor’s remarks imploring the jury to consider the effect of the crime on Foster and her family were likely improper. It is impossible to determine the weight given the victim-impact evidence by the jury. We conclude that the outcome of the penalty phase would not clearly have been otherwise but for the imploring of the prosecutor.

You can't argue with the logic, I suppose.  If it's impossible to know if the misconduct made a difference, you can't say that it clearly made a difference.  And it has to have "clearly made a difference because trial counsel - the lawyer who'd been on the case for 2 1/2 weeks - didn't object to the misconduct.  


Why not?  Was that OK?  No.  The court explains.

In his first proposition of law, Reynolds contends that counsel’s failure to object to the victim-impact evidence or the prosecutor’s use of it constituted ineffective assistance of counsel. Even though counsel should have objected, Reynolds is unable to show prejudice. There is no reasonable probability that the outcome would have been different. Accordingly, counsel’s failure to object to the victim-impact testimony does not rise to the level of ineffective assistance of counsel.

So, there you have it.  But let me do it in simple English.


The prosecutor told the jury that when they were deciding whether Reynolds should be killed, they should consider the effect of the crime on Foster's family.  That's wrong, and it might have made a difference in the sentence, but we can't tell.  Trial counsel should have objected, but didn't.  That was a serious mistake, but since the objection probably wouldn't have changed anything it's really OK.


What's that?  It still sounds too legal.  You want an even simpler summary?  OK.  The prosecutor cheated.  We don't know if the cheating is why Reynolds was sentenced to die.  And we don't care.


And so, he'll be killed on Tuesday.  Murdered by the great State of Ohio.  Because maybe the jury would have wanted that even if the prosecution hadn't cheated.


Or maybe not.  


UPDATE


As the anonymous commentor noted, Reynolds was found unconscious in his cell late last night.  Today, Governor Ted issued a one week reprieve so they'll have time to get him healthy enough to kill.  The murder is now scheduled for next Tuesday morning, March 16.