Because If They'd Really Followed the Law, They'd Have Voted for Life

On August 8, 2007, Calvin Neyland killed Douglas Smith and Thomas Lazar.  Shot them to death because they intended to fire him.  A jury said he should be killed for doing that.

Thursday, five of the seven Justices on the Ohio Supreme Court agreed.  In an opinion by Sharon Kennedy, they said that nothing that went wrong mattered and that the fact that he killed two people ("horrific crimes that lack any mitigating features") outweighed, beyond a reasonable doubt, his

• personality disorders and other mental problems 
• lack of a significant criminal record
• employment history and military service
• good behavior while in jail

Here's the bottom line:

Neyland’s course of conduct in killing Lazar and Smith is a grave aggravating circumstance. Neyland’s mitigating evidence pales in comparison. 

Your mileage may vary.  Actually, so did that of the justices.  Kennedy's opinion was joined by O'Connor, Lanzinger, O'Donnell, and French.  But Pfeifer and O'Neill disagreed.  What we know about Calvin Neyland is that he has serious mental illness.  He did at the time he killed them.  He did when he stood trial.

Maybe he satisfied the minimal standards of being competent to stand trial.  (He knew what a judge was and what the prosecutor and jury do; really, that's about enough.)  Maybe he didn't meet Ohio's test for being Not Guilty by Reason of Insanity, but he was surely nuts.  All 4 experts who examined him agreed on that.  Even Kennedy wrote that his mental health issues were worth "significant" weight.

Look, the test is, on its face, absurd.  I mean, how do you weigh those things against each other? You can"t.  There's no balance for figuring such unlike things.  What is "significant" weight, anyhow?  12? 8? 46?  And the killing of two folks? Is that a 9 or a 17? or maybe a 2600?  To ask is to see that it's nonsense.  Yet we insist jurors do it.  And then judges.  And justices.

And again, they couldn't agree.  Which you'd think might mean that it wasn't actually proved beyond a reasonable doubt.  Either that or 5 of the 7 on the court think the other two unreasonable.  Which they certainly won't come out and say even if they believe it.  But the thing is, those two have a point.

Again, Neyland was seriously mentally ill.  Pfeifer balanced it all and Neyland's "mental health" issues were enough to prevent that outweighing.  O'Neill wrote more, but he made the same point.

Capital punishment in general is abhorrent, but executing the mentally ill is unconscionable.

But he killed those guys.  Off with his head.  Besides, as Kennedy wrote,

We also note that Neyland shows no remorse for what happened and does not accept responsibility for his actions. 

To which you might be inclined to say,

Well, yeah.  Then he deserves to be killed.

Which really does seem like it maybe should matter.  If you're going to have a death penalty.  Except it is precisely not Ohio law.  In fact, it's an illegal consideration.

The law says that Neyland should be killed if and only if the fact that he killed two people in a single course of conduct outweighs beyond a reasonable doubt the mitigating factors he proved.  But the court went beyond that, weighing against mitigation, that he didn't man up and admit that he's a stone killer and that he didn't feel bad about killing them.  That is, they found mitigation that wasn't presented and turned the fact that it wasn't into aggravation.

Which, as I said, ain't Ohio law.  In fact violates it.  It was 26 years ago, in State v. DePew, that the court explained that under Ohio law

[I]t is the defendant who has the right to present and argue the mitigating factors. If he does not do so, no comment on any factors not raised by him is permissible. 

Apparently nobody on the court today got the memo.

Every lawyer knows that courts sometimes misrepresent the law or the facts, twist them, invent them, ignore them to reach the decision they want to reach. (Not in Ohio, of course, where the Mark Gardner Rule makes clear that every member of the judiciary is, like all the children in Lake Woebegone, above average.)

They wanted, the five of them - Justices Kennedy, O'Connor,  Lanzinger, O'Donnell, and French - to ensure that Calvin Neyland would be killed.  Because, after all, he killed two men.  Shot them to death. And he wasn't remorseful.  

Which is an illegal consideration.  But it pretty much drove the decision.