After three and a half years

January 16, 2014.  Just days over three and a half years ago.  

That's when a crew of select prison guards strapped Dennis McGuire to a table (we don't really use a gurney) at the Southern Ohio Correctional Facility in Lucasville, stuck needles into his arms, and . . .
Alan Johnson, a reporter for the Columbus Dispatch, watched and described what the witnesses saw.

Dennis McGuire struggled, repeatedly gasping loudly for air and making snorting and choking sounds, before succumbing to a new two-drug execution method today. . . .After being injected at 10:29 a.m., about four minutes later McGuire started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes. His chest heaved and his left fist clinched as deep, snorting sounds emanated from his mouth. However, for the last several minutes before he was pronounced dead, he was still.

The Buckeyes haven't managed to kill anyone (legally, that is) since then.  What with being unable to get the drugs and the litigation and the ever changing protocols, they just haven't been able to.

Meanwhile, we've had people freed from decades in prison - the early parts on death row - for crimes they didn't commit.  We've had more getting relief, albeit not release, because of serious constitutional problems with their trials.  We've had death on the row.  And we've had more people sent to the row.

What we haven't had is any more executions.  

And yet the state survives.  

They're maybe gonna finally pass a law that exempts the truly really absolutely fucking crazy as a motherfucking bedbug guy from execution.  (Or, of course, maybe not.)

But despite execution dates well into 2020 (27 guys have serious dates, though for one or another reason it's a virtual certainty that we won't actually kill all 27 - certainly not as scheduled), we haven't actually executed anyone since McGuire.  

Three and a half years ago.

Still, the state endures.

We've had a judge declare that Ohio's death penalty law was unconstitutional because after a jury recommends death a judge has to make additional findings in order to impose a death sentence..  (That case is now pending in the Ohio Supreme Court.)  We've had another judge overrule a jury's recommendation of death because she could not, on the record before her, make those findings.

We had it announced that death row would be moving from Chillicothe to Toledo.  And we've learned that they've maybe changed their mind about the move, so now it looks like it won't happen - for sure not anytime soon.

And we haven't executed anyone here for three and a half years.

While Ohio keeps going on its way.

Our State Attorney General's son sits on the Ohio Supreme Court.  The Hamilton County Prosecutor has announced that there's no point in a third murder trial for former University of Cincinnati campus cop Ray Tensing who shot and killed Samuel DuBose.  That's unarmed Sam DuBose.  Sam Dubose who wasn't doing anything wrong.  Killed.  Shot to death by a cop.  Twice juries hung.  Tensing won't hang.  Won't go to prison.

Three and a half years.

And still Ohio thrives.  (There's that opiate overdose thing, but hey . . . .)

So three and a half years.  Which pretty much establishes that we can just let it go.  No actual need to kill anyone.  Just give it up.  We'll keep doing just fine.

Except, you know - Are We Having Fun Yet?

Time to get the gears running.  Tune the engines.  Spin the rotors.  Tote that barge. Lift that bail. Get a little drunk and you land in . . . .

Sorry, I got distracted there. 

January 16, 2014.  Just days over three and a half years ago.

And now, it looks like for real, next week.  July 26, 2017.  Ron Phillips.

Same drugs that left McGuire gasping and snorting and choking and struggling.  

Gary Otte in September.  Ray Tibbetts in October.  Alva Campbell, Jr. in November.

And on.

And on.

And on.

After three and a half years.  In which the state's done just fine.  

But you know how the tension builds.  Until we just have to kill again.  

Or maybe not.

There are petitions and motions in the Supreme Court.  But really, the ball's in Governor Kasich's court.  There's still a week.

Fuck Hope

And so it ends.

Really, I can't say it was a surprise.  The Parole Board went out on a limb.  The Governor, a likely entry into the Republican presidential nomination sweepstakes in 2016, didn't.

Oh, he's not going to kill Tyler.  There's too much opposition to that and too little support for it.  

But the prospect of allowing the Parole Board to let him out on the street someday? The guy who may or may not (probably not, but there are only two people who really know) have actually killed Sander Leach? The guy who juries twice said should be killed?

Oh, sure.  There were letters.  But many, maybe most, just asked for LWOP which is what Ohioans To Stop Executions was pushing.  (OTSE didn't like my blog post urging a chance for parole some day, tried to talk me into changing it and urging only LWOP.)  Don't kill him, but really, let's hold actual compassion for a likely innocent man in check.

Which he did.  Today, just a day after the Parole Board said to give him a chance.  Reminding us again that the Board can recommend whatever it wants and the Governor has carte blanche to ignore that recommendation if he's so inclined.

Still.

There's this new study that shows that something like 4.1% of those we sentence to die in this country are factually innocent.  It won't likely convince anyone who doesn't already believe it.  And maybe nobody much cares about percentages anyhow.  But Arthur Tyler isn't a percentage.  He's a man. Who's just spent 30 years in prison and now learns that he's going to die there even if the state won't be expediting that death.  And for a crime he likely didn't commit.

But the Gov took the easy way.  Did what the county prosecutor said.  Gave him the sentence that wasn't available at the time: 

Death in Prison.
Life without Hope.

Way to go, John.

  Tyler Commutation

Life with Hope! What a Concept.

They didn't say Arthur Tyler should go home tomorrow, which is what his lawyers asked them to do.

Nor did they say "Off with his head," which is what Matthew Leach, Sander Leach's grandson, wanted them to do.

Nor did they say he should live but never see the light of day again, which is what Tim McGinty and the gang at the Cuyahoga County Prosecutor's office urged.

Instead, well, none of them thinks he should be killed.  Beyond that?  Well, none of them were quite ready to say.  

Eleven members of the Parole Board voted.  None said kill.  None said LWOP.  That's extraordinary. On the other hand, none said to cut him loose.  Nor did any of them say that he should get out some day.  

• All of them agreed there's too much doubt about what Tyler did to kill him.  
• All of them thought it mattered that McGinty didn't ask for death.
• None of them wanted to decide what else to do with him.

See, here's the thing.  He hasn't been a good boy these 31 years that he's spent on the row.  He's broken a lot of rules over the years.   The list of his infractions runs somewhat over 3 pages in the report list his infractions.  

So six of the folks on the Board want him to have a hearing, now, to explain.  THEN they'll decide what to do.  The others think he needs two years in general population to prove he can behave himself before they'll decide.  You know, once he's going to be allowed to ask for parole, he has to prove that he's worthy of asking.

But here's the thing, and it's important and close to unprecedented.  They all want to give him a chance.  Life with hope.  (And, at least implicitly, the clear indication that the hope will be realized before long.)  Except, of course, it's not exactly their call.

The question is where it always is.  Because the Parole Board report has no formal consequence.  It's a recommendation with no legal force.  Just a hoop the legislator set up for folks to jump through.  Governor Kasich can do whatever he wants.

Flip-a-coin Strickland made that clear, overruling recommendations of death and of life with equal randomness.  

Kasich?  

He's got just under a month to decide.

  Tyler Clemency Report by jmgamso

Organ Harvesting in Ohio

When I say, as I do, that you never know what will happen until it does, well, I could be talking about Ronald Phillips.

Yesterday's news was that Ronald Phillips wanted to donate his organs - kidney to his mother, heart to his sister, the rest of them to whoever - and that DRC said he couldn't.  It was too tough to figure out how to harvest his organs and then kill him.  I wrote about that yesterday, noting that they could do it if they wanted, but also discussing the fact that no state has yet allowed a person on the cusp of execution to become an organ donor.

That was then.  This is now.

   PRESS RELEASE_ Kasich Stays Execution of Ronald Phillips to Assess Medical Feasibility of Organ Donation -...

OK, sis won't get the heart.  But mom just might get a working kidney.  Someone else might pick up a lung or a cornea or -- hell, I don't know. 

Ohio was the first state to use a single drug to kill.  It was set to be the first state to kill with a mix of midazolam and hydromorphone.  It's the state, as I said the other day, that does the most extreme long-range planning of executions as we have prospectively dead bodies lined up through January 2016.

And now we're set to be the first state to actually defer an execution so that the guy's organs can be harvested.  Not, of course, any harvesting that would kill him.  He mustn't die doing good.  The killing, the murder, must be clean, direct, performed by prison guards, in our name.

I'm not being an apologist.  What Ron Phillips did, his brutal rape and murder of Sheila Marie Evans, was surpassingly horrific.  But this isn't about excusing him.  Noone seriously suggests that.  But here in Ohio, "The Heart of It All" as one of our tourist slogans says, enormity begets enormity, blood will have blood.  Though it cannot undo.

Still, Ron Phillips may be able to give his mother a working kidney.  Some kid might get to see because of him, someone else to breathe.  And then . . . .

Come July 2, we'll once again be attending vigils and watching, and waiting.  While they pump the drugs.

From King Lear, Act III, Scene ii.

Blow, winds, and crack your cheeks! rage! blow!
You cataracts and hurricanoes, spout
Till you have drench'd our steeples, drown'd the cocks!
You sulphurous and thought-executing fires,
Vaunt-couriers to oak-cleaving thunderbolts,
Singe my white head! And thou, all-shaking thunder,
Smite flat the thick rotundity o' the world!
Crack nature's moulds, an germens spill at once,
That make ingrateful man!

A Step Closer To Killing Billy Slagle

Damned if I know.

Just over a year ago, on July 10, 2012, Governor Kasich ignored the Parole Board's recommendation that Jeff Eley should be murdered (the Board's vote in favor of killing was 5-3) and commuted his sentence to life in prison.

That was so last year.

Today, the same governor obeyed the Parole Board's recommendation (by a 6-4 vote) that Billy Slagle should be executed.  Kill him, he said.  And for explanation?  The Parole Board said to do it.

   Kasich denies Slaglel

Yes, I can explain how it is that Jeff Eley's case is different from Billy Slagle's.  I can write about how Jeff wasn't fully responsible for his crime because of his mental illness but how Billy's youth didn't reduce his responsibility but just made him a budding serial killer.  And I can discuss in detail how it's different that the prosecutor who actually worked on Jeff's case favored commuting his sentence while it's the chief prosecutor who thinks Billy should get relief.  Or I could talk about --

Hell, you get the idea.

The thing is,

it's all bullshit.

Last year Kasich voted for life when the Parole Board said to kill.  This year he didn't.  And while the cases are different, they're not really all that different.  

Here's one of the things we know about the death penalty.  For all its layers of review and all the Supreme Court decisions and all the Parole Board hearings and all the doctors and lawyers and indian chiefs who weigh in on it.  For all the need for counsel to be specially trained and certified.  For all the commissions and task forces and ABA Guidlines.  For all the studies and law review articles and special training sessions and continuing legal education and special capital defense units in public defender offices and all the pro bono work from big law firms.   For all the vigils and the petitions and phone banks and prayer services.  For all of that,

We don't know what the fuck we're doing.

Because it's all random.  It's all arbitrary.  Exactly what SCOTUS said it cannot be and, since they did, after all, say that the death penalty is basically constitutional, that must mean that it's not random or arbitrary.  Except that it is.

And by random chance, and because the Parole Board (or 60 percent of them) said to kill (though that didn't matter for Jeff Eley) the Board said to kill, so he will.

Billy Slagle is to be killed on August 7.  

Governor Kasich is fine with that.  Damned if I know just why.

What Sort of People Are We?

Call it mercy or grace.  Call it generosity of spirit if you're made uncomfortable by the seemingly religious sound of those words.  (This atheist isn't.  I believe deeply in mercy and in grace.)

Whatever the name, the idea is that like all gifts, it reveals the giver.

So it is, as I've said repeatedly, for clemency.  Do we open our hearts and offer? Or do we hold fast to righteousness?  Do we repay hatred with kindness?  Do we say we won't do unto you as you did?

For the moment, at least, and in this one case, we know the answer.  Governor Kasich today denied clemency to Steven Smith.  No surprise there, but disappointment.

There was always hope, if not expectation, that he, in our names, would be better than that.

   Kasich denies clemency for Smith

Steven Smith is due to be killed on May 1.  

Next is Billy Slagle on August 7.

No Small Thing

[A] criminal defendant is entitled to an effective defense, especially in a death penalty case.

So said Governor Kasich.  

And then he said the other part.  Not the one we're so used to seeing.  Not "harmless error."  Not "close enough for government work." Not "but fuck, the guy's guilty."

No, this time he said,

The Parole Board’s conclusion is that Ronald Post did not come close to receiving such a defense. After my own careful review, I agree.

Which is kind of remarkable.  As was the Parole Board's opinion.

Post is guilty and won't acknowledge it even now, the Board said.  But we still shouldn't kill him.  The Governor was less explicit, but he said the same thing.

Therefore I am ordering that he spend the rest of his life in prison with no possibility of ever getting out.

Of course, that was actually his situation before.  As I've said repeatedly here, the difference between a death sentence and LWOP is the manner and timing of death, not its place.  Both are sentences of death in prison.  It's not clear to me which is worse.  

Certainly some prefer the idea of being murdered.  Get it over with.  Kill me now. 

But as I also keep saying, these decisions aren't really about the condemned.  They're about us.

Life does not need to be made torturous.  But murder is, simply, murder.

The difference matters.

Ronald Post will not be murdered by the State of Ohio, in our names, to make us all feel better or something, on January 16.

That's no small thing.

And doing it not because he deserves it, but because fairness and decency demand it.

No small thing at all.

Thanks, Gov.

Now, about that plan to use tolls from the Turnpike to pay for construction in Columbus.

12.17.12PostCommutation

Post Warrant of Commutation

This Time Without Caveat

Clemency for Jeff Eley.  From murder in prison to death in prison. Death penalty to LWOP. 

John Kasich did the right thing.

He didn't have to.

Insofar as it has any political consequence, it won't help him with his base and won't ultimately win him the support of those who think he's generally a troglodyte.

Yet he did.

He did it sooner than he had to, leapfrogging over the possibility that some court would step in and take away any need for him to act.

He was open about it.  He issued a simple but clear press release explaining why. No hedging, no obfuscation.  Here are the facts that led me to do it, he said.

So good for him.  No qualification and no waffling on my part.

Yes, LWOP is a terrible sentence. Death in prison.  Hopelessness.  It kills the soul - or at least it can.  It denies humanity, denies possibility.

So be it.  It's not homicide.

John Kasich prevented a murder.

The Parole Board told him not to do that.  They said to kill.

He said, "No."

He didn't have to.  It's hard to see any political upside for him.

But it was the right thing.

Thank you, Governor.

Eley Clemency Press Release

What's a Parole Board To Do?

It was early afternoon, a Tuesday, August 26, 1986, a cloudy day in Youngstown, the temperature in the low 80s, thunderstorms to come that evening.*

Melvin Green and Jeff Eley were hanging out when Green said they should go to the Sinjil Market, a place they called the "Arab store."  On the way, Green gave Eley a gun and told him to stick up the store.  He added that the Ihsan Aydah, whose store it was, kept a gun behind the counter.

You pretty much know what happened next, even if you didn't know.  Eley entered the store, pulled the gun, and told Aydah to put up his hands.  Green entered the store, Aydah went for his gun, and Eley shot him.  Green grabbed Aydah's wallet and some cash from the till.  Aydah died the next day..

Eley confessed.  They charged him with death specs figuring they'd trade them away in exchange for Eley rolling on Green.  He refused, which kind of forced their hands.

364 days after shooting Aydah, John Jeffrey Eley arrived on death row.

The plan is to murder Eley on July 26 of this year.  25 years and eleven months to the day since he shot Ihsan Aydah.

Eley was 37 when he killed Aydah.  He's 63 now.

He may or may not have mental retardation.  He may or may not be seriously mentally ill.  It's beyond serious dispute that he's what they used to call "slow" and that he's not altogether on top of what's going on.

He told the Parole Board he wants a full pardon.  He said he was framed.  He said he is wholly innocent.  His confession was faked, his signature on it must have been forged.  Nobody believes him.  Maybe he's delusional.  Maybe he's fantasizing.  Maybe he's just lying.**

The lead detective on the case thinks he shouldn't be executed.  The prosecutor who tried the case thinks he shouldn't be executed. At least one member of the three-judge panel that tried him and sentenced him to death thinks he shouldn't be executed.

Would that they'd thought so 25 years ago.

Today, the Parole Board issued it's decision.  By a vote of 5-3 they said he should die.

Oh, sure, all those folks who saw to it that he was sentenced to die think it was a mistake.  But, gee, he killed the man.  The dead body outweighs everything else.  And really, he hasn't proved he's retarded or insane.  And anyhow, the courts haven't found any of this sort of thing enough to undo his death sentence.

Wait, what's that last one?

The factors of Eley's head injuries, the possibility of residual doubt, an unpunished co-defendant and prosecutorial misconduct that Eley has provided to demonstrate that there was mitigation evidence that was not presented to the three-judge panel are not consistent with the trial transcripts or the state and federal court decisions. The merits of this argument were denied by several courts and a retroactive analysis conducted by the various courts found that this information would not be sufficient to outweigh the aggravating circumstances in this case.

That's the sort of bullshit the Board typically spouts.  But give it a moment's thought.  If the courts, if any court, had found those things compelling, Eley's sentence would have been vacated and he would be off death row.  Which means that the Parole Board wouldn't be considering his case.  Which means, when you get right down to it, that five members of the Parole Board think that one reason, maybe the most important reason, that Jeff Eley shouldn't have his sentence commuted to life in prison is that they have to decide whether they think his sentence should be commuted to life in prison. He should, that is, be denied relief because he's in a position to ask for it.

They could have written it this way.

When we need to decide whether to recommend commuting a death sentence, an important consideration, maybe the most important consideration, is whether there is a death sentence.  If there is, it shouldn't be commuted. 

There were three dissents, which is a lot.  They talked about the officials who now say he shouldn't be killed.  They talked about mental retardation and mental health.  They talked about Melvin Green.  But mostly what they said is that his is the wrong case.

The theory is that the death penalty is supposed to be for the worst of the worst.  The worst people who did the worst things.  If you buy into our version of the death penalty, that's what you're buying into.  Here's what the three dissenters said.

• Not the Worst of the Worst

o There are many prisoners on death row for Aggravated Murder during the course of a store robbery. Many of those have seriousness factors that are not present in this case (such as execution style or multiple slayings) that aggravate them. This case does not have circumstances to make it the worst of the worst.
o The only evidence as to whether Eley truly intended to kill the victim when he walked into the store is what he said during his police interview. He said " ... the Arab took his hands down and went under the counter. (Melvin) had told me he had a gun under the counter. I shot at him, trying to hit his shoulder." Later, after describing how Green took the victim's money and wallet, Eley said "I was in shock and just stood in front of the counter." This is hardly the reaction of someone who entered the store intending to kill the victim.
o Judge Peter Economus points out that "Mr. Eley's trial attorneys did not present any substantive mitigating evidence for us to consider when weighing the aggravating and mitigating circumstances." A strong mitigation case would have been difficult, given the client's uncooperativeness, but had there been more substantive mitigation and the availability of a sentence of Life without Parole, there is a good chance that the death sentence would not have been imposed.
o In order to convict co-defendant Melvin Green, the prosecution was willing to accept a punishment of less than death. The retributive needs of the state to condemn this very serious crime can be met with a punishment of life imprisonment without parole.

I don't know what happened that day at the Sinjil Market.  I don't know what was in Jeff Eley's mind.  I don't know how Melvin Green did or did not really orchestrate the whole thing. Neither do any members of the Parole Board.

Here's what I know.  

John Jeffrey Eley was 37 when he killed Ihsan Aydah.  He's 63 now.  He's been in prison for those 26 years, on death row for 25 of them. The folks who arranged for him to be sentenced to die think they shouldn't have done it.  A bare majority of the Parole Board thinks he should die, at least in part because his death sentence wasn't vacated before they got to decide.

The ball, as they say, is in Governor Kasich's court.

Eley Clemency Report

---------------------

*If this sort of thing sounds vaguely familiar, it might be because you once read Raymond Chandler's The Big Sleep (or one of the hundreds of books that tried to copy Chandler's style). Here's the first sentence of The Big Sleep.

It was about eleven o'clock in the morning, mid October, with the sun not shining and a look of hard wet rain in the clearness of the foothills.

**Or maybe, despite overwhelming evidence of his guilt and nothing to support his innocence, he's telling the truth.  It's remarkably unlikely, but I suppose it's possible.  He wouldn't be the first guy.

Really, They Should Have Wanted To Know

Here was the plan.

On June 6, a team of corrections officers were going to strap Abdul Awkal down to a table, stick needles in his arms, and pump him full of pentobarbital.  If all went smoothly (far from a sure thing, this was Ohio, poster-child state for incompetently carried out state killings), he'd be dead by 10:15 or so.  Maybe a couple of minutes later.

It was all a go.  The Supreme Court of Ohio set the date.  The Parole Board said to kill him.  The Governor signed off on it.

But there was this messy fact.  Awkal was nuts.  Seriously bonkers.  He didn't understand what was going on.  He was not, that is, legally competent to be executed.  Maybe.

They'd been arguing about this for a while, and Awkal's lawyers kept losing.  Until, with two days to go, the trial judge decided he should hold a hearing.

Awkal Probable Cause 

The problem is that a hearing takes time. Schedules have to be matched, witnesses called, rulings made.  And then there are appeals.  But Awkal was to be killed on the 6th.  Judge Friedman wanted a hearing.  But

HEARING TO BE SET SUBJECT TO AVAILABILITY OF EXPERT WITNESSES.

Really?  When?  After the killing?  Ordering a hearing is great, but once the Supreme Court sets an execution date, it's the only Ohio court that can stop it. So they went to the Supreme Court to get a stay. 

And the next morning, June 5, one day to go, the court told them to pound sand.

Awkal stay denied

It wasn't unanimous, but it didn't have to be.  No stay.  No continuance to find out if the Constitution allowed his execution.  Not our problem, said 5 of them.  Off with his head.

Which really might have ended it.  Except that Governor Kasich, whose record in these things is proving respectable, granted a reprieve.

Awkal warrant of Reprieve

Two weeks, he said.  Which would be Wednesday.

And Judge Friedman held his hearing.  The one to determine whether killing Awkal would violate the Constitution.  The one the Supremes were trying to stop by refusing a stay.  And the judge determined that, hey, you know what?

He's not competent and can't be executed.  Though that might change down the road.

Awkal Competency ruling

Except, you know, Friedman can't actually stop the killing.  Because, as I said, once the Supreme Court sets an execution date, it's the only Ohio court that can stop it. 

Which they did Monday afternoon.  With about 36 hours to go.

Awkal stay

And there it stays.  Unless and until his competency is restored.  Which it might be if they give him the right drugs. Or unless the court of appeals or the Supremes decide that Friedman got it wrong.  Which, since they didn't want to give him a chance to get it at all . . . .

Sigh.

Anyone mention that this is all pretty fucked up?

Still, no execution on Wednesday here in the Buckeye State.

Exhale.

Praise Where It's Due - But Still Plenty Cynical

OK, let's be honest.  My cynicism wasn't really on the verge of being shaken.

But really.  Even after the unanimous recommendation of the Parole Board.  Who'd a thunk?

I mean, Governor Ted granted and denied (mostly denied, of course, but that's not the point here) commutations seemingly at random.  And he was alleged to be secretly opposed to the death penalty.  (Or secretly a fan of it.  Depended on who you talked to.)

But you have to figure Kasich is an honest supporter - not the Shrub or his successor with the good hair, he-who-wants-to-be-President Perry, certainly - but an honest supporter.

And then, albeit with that unanimous recommendation for cover/support, he goes and does this.

Murphy Commutation

I mean, really.

When Joey isn't factually innocent. But just because it's the right thing to do.

And after commuting Kenneth Smith.

And granting reprieves (though perhaps at the request of the killers at the DRC or of the Attorney General, but still) to Brett Hartmann & Billy Slagle.

This time - not like last time as I explained  here - Doug Berman has it right.

I am not sure whether to be incredibly proud or deeply troubled that Ohio's Governor Kasich has now in the last three months made more profound and effective use of his state clemency authority in just the last three months than US President Barack Obama has in over the last three years.

So yeah, I'm still cynical.  But pleasantly surprised.

Keep it going John.  Reginald Brooks is set for November.  Do your stuff.

In Which My Cynicism Is on the Verge of Being Slightly Shaken

I admit it.  I'm confused.

Here in the Buckeye State, with the busiest execution chamber in the north (by far: Ohio's killed 45; number 2 is Indiana with 20, less than half our total), with killings lined up through August of 2013 (yes, 2013), with a Republican Governor who supports the death penalty, in fact with every elected statewide official a Republican.

Here in the Buckeye State where we've killed 4 this year.

Here in the Buckeye State where there are 4 we didn't kill this year.

Let's get specific.  Here's Our 2011.

Dead

Frank Spisak, murdered February 17
Johnnie Baston, murdered, March 10
Clarence Carter, murdered, April 12
Daniel Bedford, murdered, May 17

Alive

Kenneth Smith, stay granted by federal judge - no appeal
Brett Hartmann, reprieve from Governor to November 13, 2012
Billy Slagle, reprieve from Governor to August 7, 2013
Shawn Hawkins, commuted by Governor to LWOP
Joey Murphy, commuted by Governor to LWOP

Who knows?

Reginald Brooks, scheduled for November 15

I left one out.  Joseph Murphy.  Last Friday, the Parole Board unanimously said he should be spared.  Not because he's innocent.  There really seems to be no question that he murdered Ruth Predmore.  Not because there was some legal mistake.  But because, in the words of the late Ohio Chief Justice Tom Moyer, he was

destined for disaster.

Which hasn't been enough before, though Joey's background was particularly horrific.

And because members of Ruth Predmore's family don't want him killed.  Which hasn't been enough before.  And because . . . .

Frankly, it was a surprise decision from the Board.  

And now, the thing is that Kasich agreed.  This afternoon, he commuted Joey's sentence.A

After examining this case in detail with counsel I agree with Chief Justice Moyer, the National Association of Mental Illness and the Parole Board's unanimous 8-0 decision that considering Joseph Murphy's brutally abusive upbringing and the relatively young age at which he committed this terrible crime, the death penalty is not appropriate in this case.
Thus, I have commuted his sentence to life in prison with no chance for parole. I pray for peace for all who have been impacted by this crime.

And then there's our current Chief Justice.  Her name's Maureen O'Connor and she's no pushover.  I know that.  I've argued cases before her.  I've had her tear into me for suggesting that a death row client may not have been the worst of the worst.  I've read her opinions.

On September 9, she announced that she's working with the Ohio State Bar Association to assemble a task force to look at Ohio's death penalty.  Not to decide whether we should have it, but to decide how, if we're going to have it, to improve it.  Here's the question she asked.

 Is the system we have the best we can do?

Which, if you're going to have a death penalty, is exactly the right question.  How do we ensure that the death penalty system is as accurate and as fair as human fallibility will allow?

We've urged a study on the General Assembly for years.  Denied.

I pushed Governor Ted to do one.  Denied.

I urged then-Attorney General Marc Dann.  Denied.

And suddenly.

OK, the devil's in the details and we don't know the details.  Who'll be on the Task Force?  What will its actual charge be?  What about staffing? Funding?  Will it take its job seriously?  Will anyone take its report seriously?  Should it be taken seriously?  Those things matter.  A lot.  After all, a badly done study, a whitewash, would likely be worse than no study.

But O'Connor seems to mean it.  Maybe.

So what's going on here?

The Chief Justice. The Parole Board.  The Governor.

Oh, and they claim there will actually be hearings on an abolition bill in the legislature.

Like I say, I'm confused.

Maybe it's fumes wafting up from the Scioto River.

Then again, It took Nixon to go to China.

So maybe I should just be a little hopeful.  

Around here, 5 months without a murder by the state is something to marvel at.  

So maybe we should just marvel for a bit.

While we wait for the shoe to drop.

Shawn Hawkins - Once More with Feeling

There is no doubt that the defendant played a significant, material role in this heinous crime, but precise details of that role are frustratingly unclear to the point that Ohio shouldn’t deliver the ultimate penalty in this case. Therefore, I am ordering that he spend the rest of his life in prison and have no chance of ever getting out. As someone who has experienced sudden and tragic loss, I know the pain that comes with losing loved ones. My prayers go out to the families of Diamond Marteen and Terrance Richard in the hope that they may find peace.

That's the statement Governor Kasich issued when he commuted Shawn Hawkins's sentence.  It's no small thing that he did this.

Here, from Mark Curnutte at Cincinnati.com (which is the Cincinnati Enquirer), are some reactions.

Judy Hogan and Chuck Hogan, Hawkins’ mother and stepfather, celebrated the clemency news in their North College Hill home.

"I feel like I am floating on air,” Judy Hogan said. “The first thing I said was, `Thank you, Jesus.’”

Chuck Hogan said, “We’re ecstatic.”

Barbara Richard, of North College Hill – Terrance Richard’s mother – questioned the effectiveness of the state’s criminal justice apparatus when hearing of Hawkins’ commuted death sentence.

“If a man can spend 22 years in prison and still get clemency, then the system ain’t working,” she said.

Hawkins’ family held a news conference in its North College Hill home Wednesday afternoon to thank supporters, among them Alice Gerdeman, the Catholic nun and director of the Intercommunity Justice and Peace Center in Over-the-Rhine.

“This case is the exact reason why we need to pass legislation,” Gerdeman said in reference to a bill introduced this year in the Ohio House to end capital punishment. “We came so close – less than a week – before someone who has a very viable innocence claim was going to be put to death.”

Anthony Covatta, who has maintained his client’s innocence, released a statement shortly after hearing of Kasich’s decision.

“Our thanks go out to the thousands of citizens and interested persons, from holders of high public office to the ordinary people on the streets and in the churches, temples and synagogues of our great state and around the world who supported us in this application. More remains to be done to see that Shawn is some day a free man.”

That comes close to covering the spectrum.

Except maybe this, from a friend of mine.

Aren't those we have serious doubt about entitled to more than a cell for the rest of their lives?

Because it's worth remembering that Hawkins is still sentenced to death in prison.  Only the means of his death have been changed.

As I said, that's no small thing.  Justice Stewart said in Gregg v. Georgia.

[D]eath is different in kind from any other punishment imposed under our system of criminal justice.

That's as true now as it was in 1976, though it might be helpful to clarify it by changing "death" to "murder" or at least "killing."  Regardless, it remains that the death penalty, death as an actual sentence, to be imposed, is a sentence of a different sort than life in prison with death as the necessary end.

So thanks to Kasich.  

May he do it again.  

Many times.

Starting soon.

Shawn Hawkins Commutation

Three for Three

Clarence Carter is due to be murdered by the State of Ohio in five days.

Governor Kasich could have chosen to save his life.  He could also have chosen to save the lives of Frank Spisak and Johnnie Baston.  He chose, instead, to ensure that they would be killed.

Today, he made the same choice about Clarence Carter.

04.07.11, Carter Clemency

Carter may or may not have intended to kill Johnny Allen.  Kasich's intent is clear, though he pretends to have no blood on his hands.

I'm not religious, but if I were, on whose soul, exactly, would I be asking god to have mercy? 

It Springs Eternal, Part 2 - Too Tenuous To Take a Man's Life

Just after midnight, I put up a post about how civil rights lawyer Al Gerhardstein and former Director of the Department of Rehabilitation and Correction had together written a letter to Governor Kasich urging him to stop the execution of Clarence Carter, now scheduled for April 12.

I put out the undisputed facts of the case: Carter was in the Hamilton County jail waiting to be sentenced for a murder when he killed another inmate, Johnny Allen.  And I quoted, from Alan Johnson's article in the Columbus Dispatch, these lines from the letter Gerhardstein and Collins sent to Kasich.

"It is much more likely that this was an inmate fight that got tragically out of hand," Collins and Gerhardstein wrote. "Inmate-on-inmate violence in lockups is often pursued to establish oneself as fearsome and to deter others from threatening or attacking the inmate."

Johnson has done a terrific job over the years reporting on the death penalty in Ohio.  But he's a reporter who has to distill so he grabbed a key line from the letter, the killing wasn't planned.  There's much more.  In fact, they offer 7 specific reasons why Kasich should commute the sentence.

1. There's no evidence that the killing was planned.
2. Carter had a knife, but didn't use it, which he surely could have if he just wanted to kill Allen.
3. The key prosecution witnesses were snitches who traded false testimony for leniency.  Their claims that Carter started the fight with Allen are simply false.  In fact, Allen "actually provoked the battle."
4. The jury never heard the evidence that Allen provoked the fight.  There's a good chance it would have made a difference in the verdict.
5. The fight lasted 25 minutes.  Had guards intervened earlier, Allen would probably not have been killed.
6. Herb Brown, the retired Ohio Supreme Court Justice who wrote the opinion affirming the conviction and death sentence believes that the sentence should be commuted to LWOP.
7. A wealth of mitigation evidence that could have been presented was not.

LWOP, death in prison, wasn't an option for the jury.  (The sentencing choices were different then.)  It is an option for the Governor.

Still, Clarence Carter's no saint, and Johnny Allen shouldn't have been killed.  That's easy.  The question, as always, is what to do.

Governor's always profess to struggle with these questions.  Mostly, they're lying when they say that.  But sometimes, and in Ohio, . . . 

This from the penultimate paragraph of the letter.

Former Ohio Governor Michael DiSalle, chronicles his clemency decisions in, The Power of Life and Death. The murder conviction of Richard Rutherford hinged on the testimony of one witness, the girlfriend of the defendant.  She had changed her story several times and this weighed heavily on the governor, "Although I did not wish to impugn her character, her motives, or her way of life, her frequently changed stories provide evidence too tenuous to justify taking a man's life." (p. 77).

Yeah.

The Dispatch didn't publish the whole letter, which is a shame.  With thanks to Al Gerhardstein for sending it to me, here it is.

Gerhardstein Collins Letter