Friday, May 28, 2010

Lone Stars & Buckeyes - The Man-Bites-Dog Edition

This really doesn't happen often.  Perhaps it's anticipation of the
Let's start down in Harris County, Texas and the adventures of Judge Kevin
Here's the recap, for those who may have missed it.  Fine is presiding over State of Texas v. John Edward Green, a capital case. (This is Houston where death is what they do.  Note to Chamber of Commerce, it's hyperbole, don't get apoplectic.)  But gosh, golly, willikers.  He's concerned that innocent people sometimes may get sentenced to death.  And he's committed to the ideas of fair trial and a presumption of innocence.  So he looked at the procedures for imposing the death penalty in Texas and found them inadequate. The prosecutor went ballistic. Fine "clarified."  Then he reconsidered, rescinded the order, and scheduled a hearing on whether innocent people have been executed.  Would have been quite a show.  Except, of course, it didn't happen.
Instead, the prosecutor filed to kick him off the case.  Fair trial?  Presumption of innocence?  Surely he's so biased he can't be allowed to sit.
That put everything on hold.  Tuesday, the ruling came down.  Judge Fine gets to stay on the case.  That means we'll yet have that hearing on the execution of the innocent.  If there's a written opinion, I can't find it.  Alert readers who can get me a copy are urged to.  I'll post a link (or the opinion itself) with commentary if warranted, when I can.
Meanwhile, in Springfield (Clark County), Ohio, Judge Richard O'Neill sentenced Charles Cunningham to two life terms for the aggravated murder of Jessica Serna with prior calculation and design and for the murder of Heidi Shook.
That's not news, you say.  People get sentenced to life in prison for murder all the time.  Yeah, they do.  But not when the jury wants to kill them.
Ohio law says that a jury's vote for death is a recommendation.  When the jury votes for death, the judge must make an independent determination of whether death is the appropriate sentence.  If it is not, the judge is to decide which of three life sentences (life with first eligibility for parole after serving 25 full years in prison, life with first eligibility for parole after serving 30 full years in prison, or life with no possibility of parole ever) to impose.*  
There have been over 200 jury death recommendations in Ohio since our death penalty law came into effect in October 1981.  (I'm not going to bother running the exact number.  It doesn't matter.)  Until this week, judges had gone along with all but 7 of them.  That's something like a 97% approval rate (and it may be higher, depending on the numbers I haven't run).  
Well add one to the list and adjust your percentages.  The jury wanted Cunningham to die.  The judge, the elected judge, said no.  And the jurors, at least some of them, are pissed.  John Dewitt was an alternate juror who served on the case.
Dewitt said he was devastated when he heard the court's decision.
. . .
Dewitt said he felt serving on that jury had been a waste of his time, and put a bad taste in his mouth towards the jury process.
"For a judge to overrule our decision, why were we even there?" said Dewitt.
Well, they were there to decide guilt and provide guidance.  But the judge had a decision to make.  And give him credit for having the guts to make an unpopular one.  Doesn't happen often.
Ohio law, though, requires more than a decision from the judge.  It requires an explanation. Judgte O'Neill gave a detailed one.  Samantha Sommer reported the story for the Springfield News-Sun.
In his opinion, O’Neill wrote there is a fine line between the interpretation that Cunningham made a pre-calculated decision to kill Serna and the interpretation that he did so on the spur of the moment.
“This later interpretation of the evidence would be contrary to a finding of the element of prior calculation and design,” O’Neill writes. “While this alternate interpretation of the evidence was not the finding of the jury, it is the court’s opinion that these facts and circumstances must be given considerable weight as factors in mitigation.”
That's just a taste of the detail O'Neill offered. 
Cunningham Opinion                                                                   
Enjoy the holiday.

*If the jury votes for one of the life sentences, the judge must impose that sentence. 

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