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

L'Chayim (To Life) - UPDATED

Hot damn.

Shawn Hawkins, who might be factually innocent, just got his death sentence commuted to life without the possibility of parole.  As I discussed here, the Parole Board urged it, unanimously.

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.

And now Governor Kasich has granted it.

LWOP.

Death in Prison.

But life.

UPDATE

The details are coming in.  When I find a link to the Governor's press release (surely there will be one), I'll either update again or put up a new post.  But Alan Johnson lays it all out in the Dispatch.

Hawkins' attorney Anthony G. Covatta issued a statement thanking Kasich for his "merciful 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 someday a free man. The struggle continues. The dream will never die."

More telling even than Covatta's words, are the words of Hawkins' mother before the Parole Board.

I conceived him, carried him, birthed him, raised him. I don't want to bury him.

And then there's Joe Deters, Hamilton County Prosecutor.  Stunningly, he announced that he will not go to the prison and murder Hawkins himself in order to carry out the sentence that the Governor vacated.
Johnson reports.

Deters said he would abide by the governor's decision.

Golly.

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.