Doubt? You Want Doubt? I'll Give You Doubt

The Board is not confident in the death sentence in this case, but is also not convinced that Shawn Hawkins is innocent. Given all of the above, the Board believes the exercise of executive clemency is warranted.

So they recommended LWOP.

Which raises a couple of interesting questions.

First, of course, is what Kasich will do.  So far, he's had three chances to kill and taken every one.

He ordered killing when the family of the murdered man opposed it (Johnnie Baston).  He ordered killing of a guy who was clearly nuts (Frank Spisak).  He ordered killing in the face of serious evidence that the underlying killing wasn't intentional and that corrections officers could likely have prevented it (Clarence Carter).

What he hasn't done yet is order a killing when the Parole Board urged him not to.  (Governor Ted, of course, did just that when he rejected the Parole Board's recommendation of life for Jason Getsy.)  But the Parole Board says Hawkins shouldn't be killed.  And we get to find out just how bloodthirsty John Kasich will show himself to be.  (Of course, we're still waiting to hear about Danny Bedford, due to be killed next Tuesday, but I don't think anyone doubts Kasich will sign off on that one.)

The second question, though less immediately urgent, has longer-range implications.  It's about how, at least nominally, we decide who to kill in Ohio.

I have to begin with moment (brief, I promise) about how the mitigation phase of an Ohio trial works, followed by a very short (really) dip into case law from the Ohio Supremes.

Mitigation:

The jury is to weigh (don't ask how, there's no meaningful scale for this sort of thing) the aggravating circumstance or circumstances of which the person was convicted against whatever the jury finds to have been mitigating.  If the aggravating stuff outweighs the mitigating stuff beyond a reasonable doubt, the jury is supposed to say kill.  If not, it's life.

There's a list of statutory mitigating factors, but the last one on the list is a catchall.

Any other factors that are relevant to the issue of whether the offender should be sentenced to death.

That's the law.  One of the most powerful mitigating factors, pretty much everyone who's either thought much about it or actually studied the question agrees, is residual doubt.  If, despite the guilty verdict, the jurors aren't all that convinced that the guy did it, they're reluctant to say he should die.

Case Law:

In State v. Watson, the Ohio Supremes specifically recognized the propriety of residual doubt as a mitigating factor.

Residual doubt of a capital defendant's guilt may properly be considered in mitigation.

They explained.

In this case four disinterested eye-witnesses testified under oath that Watson was not the man they saw running from the scene of the crime. Furthermore, there is some question as to the credibility of the prosecution's witnesses: Moon and Prater saw the robber only briefly, and Toney had a strong motive to protect her stepbrother, Henderson. Additionally, the circumstantial evidence points to Henderson, not Watson.
As we have previously determined, this evidence does not constitute reversible error because, where the verdict is based on sufficient evidence, the evaluation of the evidence and the credibility of the witnesses is for the jury to determine. See our discussion in Part ID, supra. However, events at the penalty phase of Watson's trial could have affected the jury's choice between a life and a death sentence in the face of any residual doubts they may have had.

And so, on the basis of residual doubt, the court overturned Watson's death sentence.  Good stuff.

That was then.  This is now.

Actually, that was 1991.  State v. McGuire was 1996.

Residual doubt is not an acceptable mitigating factor under R.C. 2929.04(B), since it is irrelevant to the issue of whether the defendant should be sentenced to death.

So much for that.

Now, back to the Parole Board and the second question.

As I've pointed out before, when the Parole Board urges death, it routinely says things like no court has found error sufficient to overturn the death sentence.  Well, sure.  If the death sentence had been reversed, they wouldn't be deciding whether the guy should be killed.  But they also say that the statutory aggravators outweigh the mitigators.  That is, the jury got it right.

Except, now they're saying the jury got it wrong, and the basic reason is that residual doubt (which the Ohio Supremes, you'll recall said is irrelevant to mitigation, is not only relevant but compelling - and enough to save the life of Shawn Hawkins.

Governor Kasich?  The Hawkins ball is in your court.

Justice O'Connor and the gang? Residual doubt is back in yours.