Death by Default

May 17.

That's the day the good folk of the Buckeye State have set aside for the murder of Danny Bedford.

We're proving to be good at this killing business, getting it all done on time, keeping the syringes greased.  So far, we hold the national lead in official murder in 2011.  Three to date in Ohio.  Two each in Oklahoma and Alabama.  No more than one anywhere else.  (Yep, even Texas has only killed one so far this year.)  And there are no more murders scheduled this month, so we should hold pride of place for a while longer.

Go Buckeyes!

But I digress.

In 1984, Beford killed his former girlfriend Gwen Toepfert and her then-boyfriend John Smith.

Bedford suffers from dementia.  He has mild mental retardation.  He suffered from depression and was addicted to alcohol.  As a consequence of his mental impairments, he cannot actually recall killing Toepfert and Smith.  When Bedford was thirteen, his father was murdered by his girlfriend.  His mother died of cancer.  He has changed over the years he's spent on death row.   The prosecutor committed such serious misconduct during the penalty phase of the trial that three of the seven justices of the Ohio Supreme Court thought the death sentence should have been reversed.  (The court's opinion is here.)

Frankly, and sadly, there's little to distinguish those facts (except the number of dissenters) from the facts in many death penalty cases.

The crimes are typically ugly.  Those who commit them are likely to suffer mental illness and impairment.  They typically grew up in broken homes, amid chaos, uncertainty, and violence.  Prosecutorial misconduct often seems, I'm sorry to say, the norm rather than the exception.  (The particulars of the misconduct, and how pervasive it is, vary considerably.)  And of course, the people we kill aren't the ones who committed those crimes.  I'm not talking about factual innocence here, not about mistake.  I'm saying that people change.  The Danny Bedford of today is not the Danny Bedford of April 1984.

And so, and again typically, the Parole Board urged Kasich to get on with the killing.  (Board's report is here.)

You read enough of these reports and you strive to find something to set one apart from the next.  They are all identical in form.  They are mostly similar in substance.  Yet always there's something.

Because however similar, the men and the crimes and the cases are each unique.  As with everything in the law, no two are ever identical.

And so it is that the state argued to the Parole Board that it shouldn't be considering evidence that Bedford had mental retardation.  That claim, the state argued, should have been determined by a court.  The Parole Board agreed.  Of course, as the Board noted because it's nothing if not diligent in reporting arguments made, Bedford tried to make the case in court.

Attorney Barnhart assured the Board that they are not attempting to avoid judicial scrutiny and would,  in fact, welcome it, but the state has opposed their attempts.  She stated that the courts have no afforded Bedford the opportunity to litigate his claim of mental retardation which would make him ineligible for execution if substantiated.  In fact, on October 18, 2010, the trial court issued a final judgment denying Mr. Bedford's petition and gave no reason for that denial.  She stated that it is disingenuous of the state to oppose a hearing in court on the merits of the mental retardation claim, and at the same time argue that the information presented to the Board during the clemency hearing is better suited for the courts to decide.  The mental retardation information is being presented to the Board because Bedford has been unsuccessful in having it heard by the courts, and presentation to the Board is the only current option.

Anyone who does this sort of work knows that this kind of thing is the norm.  No, we're told.  You can't make that argument here, you must make it there.  And No, we're told when we make it there.  You should have made it in the first place where they refused to hear it.  The prosecutors urge that.  The courts accept it.  You must find the right time and place.  But there is no right time.  There is no right place.

If there was a right place, could he make the case?  Could he convince whoever had to be convinced that he had mental retardation?  I don't know.  Neither does anyone else.  He didn't convince the Parole Board, but the Board agreed that it "is not suited to make the determination of mental retardation."

Since they're not competent to decide, they figure death is the best option.

The default.

Agents of the state of Ohio will probably kill Danny Bedford next month.  It's what they do.

Is he the worst of the worst who committed the worst crime?  No, I don't think anyone who's paid attention and didn't have a personal ax to grind could say that with a straight face.

Is he so dangerous that he must be eliminated to protect fellow prisoners or prison guards?  Nobody even hints at that.

Is there any reason at all to kill him?

Might as well.

He'll be number four this year.  Six more scheduled.

We're Number 1!  We're Number 1!

Because why not.