Ohio: Where Good News Abounds

I was getting set to delve into the world of constitutional interpretation again.

The plan was to do some riff off of now-retired Supreme Court Justice David Souter's commencement speech at Harvard.  It's an impressive speech exploring just why the balls 'n' strikes model of judging and justicing (at least of constitutional judging and justicing) is necessarily nonsense and why, also, the idea that what he calls the "fair reading" model is equally hopeless.

I still want to do that.  Maybe tonight (ah, yes, another Friday night writing blog posts; you enjoy the weekend your way and I'll enjoy it mine) or tomorrow.

But the news cycle interrupts.

So it's time for a quick (I promise) dip into the criminal-law related waters of the Buckeye State (that's Ohio).  Three events.  Two at least something of a surprise.  Yesterday's first.

The Supreme Court of Ohio

On November 4 last year, the Ohio Supreme Court heard oral argument in four cases challenging in a variety of ways the retroactive application of Ohio's latest sex offender classification, registration, and notification law, the Adam Walsh Act.  (You can watch the arguments by following the links here.)

As relevant here, the AWA required that some 26,000 people who had judicially determined and imposed registration requirements would be reclassified by the state Attorney General under the new system.  The old system classified people based on a calculation about the likelihood they would be dangerous.  The more dangerous, the more attention would be paid and the greater focus.  The new system increased surveillance over everyone but abandoned the concern with prospective dangerousness.  The vast majority of those 26,000 had their classification categories and duties increased dramatically.  Thousands were moved from the least monitored to the most monitored - not because they were more dangerous (again, that was irrelevant) but because of what they had been convicted of.

Anyhow, today makes 7 months since the argument.  In the interim, the Chief Justice before whom we argued (disclosure, I was counsel and did the oral argument in the first of that morning's cases, State v. Bodyke) died suddenly.  And this is an election year in which one of the sitting justices is running against the newly appointed Chief Justice.  So we've been waiting.  And waiting.  And wondering if the court was going to order us to come back and argue them again after the election.

Now we know.  Yesterday, the court ruled in Bodyke, the first of those four cases.  Those 26,000 people were previously classified by judges.  The Attorney General, even acting on the legislature's command, cannot undo the acts of the judiciary.  The three branches of government can and should work together.  No branch, though, has the right to usurp the role of another.

26,000 people will return to their prior classifications.  We might have wished for a broader-based ruling, but this is an absolute win.  Not just for the 26,000 men and women (and their families) affected, but for all the people of Ohio.  Applying the new law to them is not only costly and unconstitutional, it actually makes us less safe, sapping attention and resources from where they can do good and directing them to where they serve no purpose.

Score One.

Governor Ted

A couple of weeks ago, I wrote about Richard Nields.  He was due to be murdered by the Ohio Department of Rehabilitation and Correction on June 10.  But the Parole Board voted 4-3 to recommend that the Governor commute his sentence to life without parole.  Three reasons.  One Ohio Supreme Court justice said that Nields' wasn't the sort of case the law should be applied to.  The federal appellate court that affirmed his death sentence said it wasn't the sort of case the law should be applied to.  And then there was Paul Shrode, the coroner who did the autopsy of the woman Nields killed, Patricia Newsome.  

Shrode testified at the trial, providing much of the evidence about how Newsome's murder was coldly calculated, evidence the prosecutor urged the jury to rely on, evidence it turns out that had no scientific basis whatsoever.  Shrode just lied about it. 

A week after the Parole Board issued its decision, Shrode was fired from his job as medical examiner for El Paso County, Texas.  Alicia Caldwell explained it this way in her story for the Dallas Morning News.

El Paso County's medical examiner was fired Monday following years of questions about his resume and qualifications.
Dr. Paul Shrode, who testified in an Ohio capital murder case where officials are now recommending the death sentence be overturned, was released from his job after a 3-1 vote by county commissioners, said commissioner Veronica Escobar.
Questions about Shrode's qualifications have swirled since he acknowledged in 2007 that he lied on his resume about having a law degree. Last year, the county was notified that Shrode was no longer eligible to become board certified in pathology, despite his claims of having received the certification years earlier, Escobar said.
"Cumulatively his own actions have made it so that it's hard for the community to have faith in Dr. Shrode and for me to have faith in Dr. Shrode," Escobar said after the vote.

So we've been waiting.  What would Ted do?  Frankly, I figured he'd let Nields die.  I mean, what the hell, who really cares, and there's an election coming up and, well, Ted hasn't exactly shown that he cares deeply about this stuff.

I guess I owe our Governor an apology.  Today he commuted the sentence to LWOP.  Richard Nields will live.  Ohio won't murder anyone this month.

Sorry for misjudging you, Ted.  

Except, there were all those other guys you let die.  And lots more are in the dock.  Many with real dates.
Score Two.

Lorain County

Her name is Nicole Diar.  She did or did not murder her 4-year-old son, Jacob.  She was sentenced to die in 2005.  Three years later, the Ohio Supremes sent her back to be resentenced.  Yesterday that was done.  Life without parole.
I've talked about LWOP before, never with joy.  It is, as I've said, a sentence of death in prison.  It's the removal of hope.  It's as ugly as can be.  Yet . . . . 
Kreig Brusnahan, one of her lawyers, put it this way.

It’s a difficult day for Ms. Diar and her family, but, given the choices we had, life without parole is certainly a better choice than the possibility of facing the death penalty.

Score Three.

One Step Forward, Two Steps Back

A little after 6 this evening, the State of Texas murdered Rogelio Cannady.  It was just the sort of case the retentionists tout.  Cannady was serving 2 life sentences for murder when he killed his cellmate, Leovigildo Bonal, beating him to death with a belt and a padlock.

Cannady said it was self-defense, sort of.  He also said he shouldn't have been doing the original sentences.  The courts weren't interested.  I don't pretend to know whether his claims had even a glimmer of merit.  Frankly, until tonight I don't think I'd ever heard of him.  But he was the 10th person executed in Texas this year, the 456th since they started killing folks there.

Cannady was pronounced dead at 6:19.  Twenty minutes later, at 6:39, someone in Mississippi pronounced Paul Everette Woodward dead.  

He was 62.  He'd been sentenced to die for the rape and murder of Rhonda Crane in 1986.  At least one report said that Woodward had "at least 5 children and 11 grandchildren."  None were on his approved call list, and he didn't have any of them in attendance.  His was the first execution in Mississippi since July 2008, only the 11th since that state began killing people.

I'd never heard of him before tonight, either.

Another person I don't think I've heard of before is Richard Tandy Smith.  He was due to be murdered in Oklahoma next Tuesday for the drug-related murder of John Cederlund in 1986.  Except it won't happen.

Back in March the Pardon and Parole Board recommended clemency for Smith.  Governor Brad Henry considered, put off the execution twice so he could keep reviewing things.  He met with defense counsel and with prosecutors.  It was a hard call, he said.But today he commuted the sentence.

“This was a very difficult decision and one that I did not take lightly,” said Gov. Henry. “I am always reluctant to intervene in a capital case, and I am very respectful of a jury’s verdict, the prosecutors who tried the case and the victim’s family who suffered because of the crime.

“However, after reviewing all of the evidence and hearing from both prosecutors and defense attorneys, I decided the Pardon and Parole Board made a proper recommendation to provide clemency and commute the death sentence.

“As a result, Richard Smith will be punished by serving the rest of his life behind bars without the possibility of parole.”  

Let's understand what we're talking about here.  Death on the installment plan.  Death in prison.  Life without the possibility of parole.  It's a horrific sentence.  But it's not death.  That's no small thing.  And it's no small thing that this is the third time Governor Henry has done it.  

Like I say, I don't know anything in particular about these men's cases.  They're not nationally famous.  I don't know the particular outrages they claim or might claim about their cases.  I don't know about brain damage or mental illness or how they were victimized as kids.  I don't know the details of their likely-shoddy representation.    Until tonight, they weren't even names to me.  

And they're just three of the 3200 or so men and women who have been condemned, who sit on death rows waiting to be killed.  As I've said before (here and here and here, for instance), few of them get any attention.

So let's at least take this opportunity to consider these three.

• Rogelio Cannady
• Paul Everette Woodward
• Richard Tandy Smith

Two now dead.  One who gets to live.

Texas, Mississippi, Oklahoma.

Two steps back.  One forward.

Richard Nields. Ohio. June 10.  A recommendation of LWOP.  

They can do it in Oklahoma.  

Ted, the ball's in your court.

A Birthday Glimmer of Hope

There are a few different ways I can write this.

I can make the focus Governor Ted and the chance he has, once again, to prove that he actually has some principles and might even follow them in the face of perceived political cost but that he almost surely doesn't actually have principles and won't actually follow them even if he does.

I can make the focus a quasi-legal analysis of the case and what we can take from the decision.

I can just rejoice and say Happy Birthday and hope that the good news turns out to have legs.

Or, of course, I can just natter around the edges of all those things.

We'll see how it goes.

The subject, by the way, is Richard Nields.  In 1997, in Springfield Township (just outside Cincinnati) he killed his girlfriend, Patricia Newsome.  He's on death row.  The Supreme Court of Ohio has scheduled his murder for June 10.

Every person in Ohio facing an execution date has a hearing before the Parole Board (whether he wants one or not) which then makes a recommendation to Governor Ted.  The Board can suggest he grant clemency or that he deny it.  Commute the sentence, or allow the killing to go on.  But it's just a recommendation.  Ted can do what he wants.

The hearing for Richard Nields was held May 10.  The Parole Board issued its report and recommendation today.  By a 4-3 vote, it recommends that the Ted commute the sentence to LWOP.  That's no bonus.  As I've said repeatedly, it's death in prison.  But it's something.

The question, of course, is what will happen.

This isn't an innocence case.  

The majority claims to base its recommendation primarily on the undisputed evidence that the coroner who testified at the trial just made up conclusions that had no scientific or medical basis in order to "prove" that the Nields first beat Newsome and then returned some time later to be sure and kill her.  The prosecutor hammered that "fact" to the jury.  The judge relied on it.  And it's bullshit.  Beyond that, they think it's powerful that the 6th Circuit said this was barely a death case at all (though close enough to affirm the death sentence) and that Ohio Supreme Court Justice Pfeifer dissented from that court's affirming the death sentence.

In conclusion, members voting favorable are concerned about the medical evidence that has been called into question and not refuted by the State during their clemency presentation.  Members also respect the dissent of Justice Pfeifer as well as the concern that the Justices [sic] of the United States Sixth Circuit Court of Appeal had, in that the circumstances of this case just barely get Nields over the death threshold under Ohio law.  For this reason, we believe that Nields' sentence should be commuted to that of life without the possibility of parole.

It is, perhaps, equally worth noting what the majority didn't find moving: the facts that Nields had brain damage, that he has always shown remorse, and that he has been something of a model prisoner.

The dissenters, on the other hand, look at the facts that Nields was eligible for death even if the coroner's testimony was worthless, that Nields didn't just pony up with a complete and thorough confession from the moment of the crime and still denies that he has and had a history of violence against women.

Given all of these facts, we do not believe that the outcome of the case would have been any different had the court and jury heard more reliable medical testimony.  We also believe that the aggravating circumstances in this case make death the appropriate sentence.

So what does all that mean?  I'm not sure it means anything much.  It suggests, though, that the only thing that can sway a majority of the Board toward clemency is the likelihood that either the conviction or the death sentence was based on what is proved to be junk science (or maybe some hard and uncontroverted evidence of factual innocence).

That's of some use, perhaps, in tailoring a clemency petition and hearing.

But it is, of course, only part of the battle.  There's still Governor Ted.  I'm waiting to see.  But I fear the worst.

In any event, good news for today, a breath of fresh air from the Board.  And oh, like I said, a birthday present: A chance, some reason to hope.

Richard Nields turns 59 tomorrow.  

May he live to see 60.

Happy Birthday!