Statewide Expert Legal Panel Calls for Temporary Halt to Executions in Ohio

Study uncovers systemic problems with death penalty cases

COLUMBUS, OHIO, Sept. 24, 2007 — After a 30-month review of Ohio’s death penalty system, a team of Ohio legal experts, working under the auspices of the _’s Death Penalty Moratorium Implementation Project, today issued a report calling for a temporary halt to executions in light of numerous problems the team uncovered.

The team said that Ohio’s death penalty system is “flawed” due to inadequate procedures to protect defendants, including failure to require the preservation of biological evidence for as long as a defendant is on death row, failure to provide adequate legal services to all capital defendants and death row inmates, racial and geographic disparities in capital sentencing, and insufficient safeguards to protect the rights of capital defendants and death row inmates with mental disabilities.

The team urged Gov. Ted Strickland to temporarily suspend executions to permit a “thorough review” of every aspect of capital punishment administration in the state.

“Ohio’s own experts have concluded that the state fails to provide adequate measures to protect defendants. As has happened elsewhere, Ohio has exonerated five inmates who spent years on death row,” said ABA President William H. Neukom. “The ABA agrees with the team’s view that nobody should be executed until the problems identified by these experts are addressed, and we urge a temporary halt to executions until fairness and accuracy are assured,” he said.

The ABA neither supports nor opposes the death penalty, but it does urge a moratorium on executions until fairness and due process are assured in death penalty cases. The Ohio report has not been presented to the ABA’s policy-making arm, the House of Delegates, and so does not constitute association policy.

“The problems found in this assessment strike at the very heart of Ohio’s justice system,” said Michael S. Greco of Boston, past president of the ABA, in a news conference today. “The Ohio team is calling on Gov. Strickland to temporarily suspend executions until the state can assure its citizens that fairness and justice are being served.”

The Ohio Death Penalty Assessment Team was chaired by Phyllis Crocker, an associate dean and professor at the Cleveland-Marshall College of Law. Other members of the team include U.S. Rep. Stephanie Tubbs Jones, State Sen. Shirley A. Smith, Magistrate Judge Michael R. Merz, former Ohio Supreme Court justice and current Court of Claims Judge Craig Wright, professor of law and faculty director of the Lois and Richard Rosenthal Institute for Justice/Ohio Innocence Project at the University of Cincinnati College of Law Mark Godsey, University of Akron School of Law Prof. Margery M. Koosed, Cleveland-Marshall College of Law Dean Geoffrey S. Mearns, Columbus attorney S. Adele Shank, and Columbus attorney David C. Stebbins. Merz and Mearns abstained from the vote supporting a temporary suspension of executions.

“After citing a wide range of deficiencies in Ohio’s legal scheme for managing the application of the death penalty, and hard evidence of people sentenced to death wrongfully in Ohio, the committee strongly urges a temporary suspension of executions until problems can be corrected and fairness assured,” said Crocker. “Even death penalty advocates demand that processes for administering the death penalty be thorough and exhaustive to avoid the intolerable possibility that an innocent person is executed.”

The assessment team determined the State of Ohio is in full compliance with only four out of 93 protocols developed by the ABA to assess death penalty jurisprudence. The state partially complies with 37 of the protocols and fails to comply with 28 of them. It had insufficient information to assess compliance with 23 protocols, and determined that one was inapplicable.

Broad areas identified as being in need of reform are:

* Inadequate procedures to protect defendants
* Inadequate access to experts and investigators
* Inadequate legal representation
* Inadequate appellate review of claims of error
* Lack of meaningful proportionality review of death sentences
* Virtually nonexistent discovery provisions in state post-conviction
* Racial and geographic disparities in Ohio’s capital sentencing
* Death sentences imposed or carried out on people with severe mental disabilities

The team issued 14 specific recommendations, along with other recommendations within each of 13 chapters of the report. They are:

* Require all biological evidence be preserved in all potentially capital cases for as long as the defendant remains incarcerated.
* Require all law enforcement agencies to videotape the entirety of custodial interrogations in homicide cases at police precincts, courthouses, detention centers, or other places where suspects are held for questioning, or, where videotaping is impractical, to audiotape the entirety of the custodial interrogation.
* Implement mandatory lineup procedures, using national best practices, to protect against incorrect eyewitness identifications.
* Create a commission, with the power to conduct investigations, hold hearings, and test evidence, to review claims of factual innocence in capital cases.
* Adopt increased attorney qualification and monitoring procedures for capital attorneys at trial and on appeal and qualification standards for capital attorneys in state post-conviction and any other related proceedings.
* Ensure proportionality in capital cases by developing laws and procedures to eliminate racial, geographic and other disparities.
* Vigorously enforce Ohio court rules requiring prosecutors to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates punishment.
* Amend Ohio statutes and rules to require the appointment of separate counsel for direct appeal and state post-conviction proceedings immediately after a judgment and sentence of death.
* Engage in a more thorough review of the issues presented to the court(s) in capital appeals, relax the application of waiver standards, and decrease the use of the harmless error standard of review.
* Amend state rules and statutes to allow a defendant to engage in discovery and develop the factual basis of his/her claims prior to filing his/her post-conviction petition, and amend state laws to allow petitioners to use the public records laws to obtain materials in support of post-conviction claims.
* Create a publicly accessible database on all potentially death-eligible murder cases.
* Employ a more searching sentencing review in capital cases before the Ohio Supreme Court to include review of cases in which the death penalty could have been sought but was not, or was sought but not imposed.
* Conduct and release a state-sponsored comprehensive study to determine the existence or non-existence of unacceptable disparities in the Ohio death penalty system and provide a mechanism for ongoing study of these factors.
* Adopt a law or rule excluding individuals with serious mental disorders other than mental retardation from being sentenced to death and/or executed.

Ohio is the seventh of eight states being assessed under the ABA project, which developed the protocols in 2001. Georgia, Alabama, Florida, Arizona, Indiana and Tennessee preceded Ohio. The last assessment is being conducted in Pennsylvania.

With more than 413,000 members, the _ is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.