Tuesday, September 10, 2013

The Sixth Circuit, By Vote of 2-1, Demonstrates That It Doesn't Believe Ohio Law Applies in Ohio

it is a peculiar provision of Ohio's death penalty law that what's referred to as the "nature and circumstances of the offense" are relevant considerations only if they weigh in favor of life rather than death.

If you favored the death penalty and were designing a death penalty law (as a bunch of legislators - including one who is now a justice on the Ohio Supreme Coury - did back in 1981) you'd do it the other way around.  If the crime is particularly horrific, say if the person getting killed is slowly tortured to death or burned at the stake or eviscerated while alive or something, that would go into the hopper as another reason to weigh in favor of putting the killer to death. But in Ohio, those things don't count unless evisceration or torture makes the crime and the criminal less worthy of execution.

Like I say, it's peculiar.  But it's what the statute written in 1981 says, and it's absolutely what the Supreme Court of Ohio said in 1996 in a case called State v. Wogenstahl:
Therefore, R.C. 2929.04(B) clearly mandates that the nature and circumstances of the offense may only be "weighed" against the R.C. 2929.04(A) specifications of aggravating circumstances the defendant was found guilty of committing.
(The boldface in that quote is mine, added for emphasis.)

Now Wogenstahl, and that rule specifically, are definitively the law in Ohio.  Except that the federal courts don't believe it.  The 6th Circuit, the federal appellate court that covers Ohio, has made that clear for a while, refusing even to acknowledge the existence of Wogenstahl.  Which brings me to Archie Dixon.*

This morning, in its decision in Dixon v. Houk, the 6th Circuit affirmed the district court's decision to deny Archie relief.  It's OK, the panel said by a vote of 2-1 the State of Ohio can go ahead and kill Archie for the murder of Chris Hammer.  Sure, the trial judge wrongly kept mitigating evidence out.  But hey, we don't care.

 Here's how it happened (and you can glean only some of this from the opinion).  Archie's trial lawyers had four things they wanted to tell the jury in mitigation.  They also had two reports about Archie, one from a psychologist and one from a mitigation investigator.  They could have called those folks, introduced their information into evidece, but they decided they didn't want to do that.  Just those four things.  

Then the trial judge said that they couldn't tell the jury three of the four things they wanted the jury to know.  Instead of reconsidering the decision not to use the information from the reports (now that their 3/4 of their 4-fact mitigation was shot down), they went just with the one thing the judge had said he'd allow.  The Ohio Supreme Court said that they should have been allowed to tell the jury about one of the things the judge forbid, but also said it wouldn't have mattered so the hell with it.  And those reports the Ohio Supreme Court refused to consider and the 6th Circuit wrongly said were never presented to the state courts?  Well, but nobody tried to put them before the jury.

Anyhow, the 6th Circuit said, it wouldn't have mattered.
On the other hand, mounds of aggravating evidence were presented at trial,which easily outweighed the value of Dixon’s scant mitigating factors. He brutally beat Hammer, attempted to break his neck, bound him to a ladder, drove him into a wooded area, allowed him to smoke a cigarette and say a prayer, and then buried him alive. The details of the kidnaping, robbery, and murder easily outweigh any effect that the evidence offered by Dixon would have had on the jury.
In other words, the crime was so bad, the nature and circumstances of the offense so horrific, that --
Well, yeah.  It's only sensible.  The worse the crime, the more horrible, the more death is appropriate.
To which the 6th Circuit, without ever acknowledging that it has Ohio law wrong, says simply, 
Kill him.
Which might make sense.  But isn't the law.

Oh, wait.  It is.  Not Ohio law, of course.  It's the 6th Circuit's law, which they say is what Ohio law must be even if it's not.  Because the 6th Circuit can do that.

Law of Rule.

*I need to be careful here.  I represented Archie for many years, and I don't want to let that cloud my judgment, nor do I want to write anything that hangs on or comes to me from my representation.  But there's a point that I want to make and Archie's case is the perfect vehicle for it.

When a trial judge suppressed his statements to the police (a detective testified that they didn't give him his Miranda rights because they were afraid if they told him he had a right to refuse to speak with them he would refuse to speak with them), the state appealed, and the judge appointed me to defend his decision.  (The court of appeals twisted the law and the facts in order to reverse and declare that the statement was admissible.)  After Archie was sentenced to die, the trial judge (not the same one who suppressed the statements), appointed me to appeal his conviction and sentence, which I did in the court of appeals and then in the Ohio Supreme Court and then in a petition for writ of certiorari to the U.S. Supreme Court. 

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