A Criminal Enterprise

Worst of the Worst Elude Death

Posted in Uncategorized by Robert Smith on September 12, 2009

I recently read an article with this title, which includes a startling statistic cited by Ohio Public Defender Tim Young:

Ohio prosecutors have obtained 724 capital indictments since 2000, but only 50 death sentences. That, Young said, is a 93 percent failure rate.

Out of the 7% percent of capital indictments that do result in death, how many capital sentences  remain in-tact after the appellate process?  I looked at cases on direct review of the trial court judgment (quick and dirty, so please let me know if I have missed any). In Ohio, these capital appeals go to the Ohio Supreme Court. Since January 1, 2005, the Ohio Supreme Court has reviewed the cases of 29 death-sentenced inamtes on direct review. Here are the numbers:

  • Direct Review (29 cases)

Six Penalty Phase Reversals (including one reversal for whole new trial)

  1. State v. Diar, 120 Ohio St. 3d 460 (Ohio 2008)(failure to give a solitary juror instruction)
  2. State v. Brown, 115 Ohio St. 3d 55 (Ohio 2007) (reversed for new trial: Brady, IAC)
  3. State v. Roberts, 110 Ohio St. 3d 71 (Ohio 2006)(improper ex parte communication at penalty phase)
  4. State v. Tenace, 109 Ohio St. 3d 255 (Ohio 2006)(disproportionate, cumulative mitigation warranted life)
  5. State v. Hancock, 108 Ohio St. 3d 57, 62 (Ohio 2006)(erroneous submission of the excluded exhibits)
  6. State v. Jackson, 107 Ohio St. 3d 53, 88 (Ohio 2005)(abuse of discretion at voir dire)

Twenty-three cases affirmed

= 21% reversal rate on direct appeal. (20.68% rounded-up)

  • Eight Other State Court Reversals since 2005
  • The Ohio Supreme Court vacated 6  death sentences since 2005, as the defendants were mentally retarded:
  1. Paul Greer (2008)
  2. Clifton White (2008)
  3. Raymond Smith (2008)
  4. Derrick Evans (2008)
  5. Kevin Yarbrough (2007)
  6. Darryl Gumm (2007)
  • Trial Court Reversals
  1. State v. Mapes, 2006-Ohio-294 (2006) (trial court reversed death sentence for ineffective assistance of counsel)
  2. State v. Mark Burke (2006) (coroner changed opinion of key evidence)
  • Ten Federal Sixth Circuit reversals  since 2005 (including affirmations of district court reversals).
  1. Williams v. Anderson, 460 F.3d 789 (6th Cir. Ohio 2006)(ineffective assistance of counsel at the penalty phase)
  2. Richey v. Bradshaw, 498 F.3d 344 (6th Cir. 2007)(ineffective assistance of counsel)
  3. Davis v. Coyle, 475 F.3d 761 (6th Cir. Ohio 2007)(improper restriction on right to present mitigation evidence)
  4. Haliym v. Mitchell, 492 F.3d 680 (6th Cir. Ohio 2007)(ineffective assistance of counsel at the penalty phase)
  5. Madrigal v. Bagley, 413 F.3d 548 (6th Cir. Ohio 2005)(confrontation clause reversal)
  6. Joseph v. Coyle, 469 F.3d 441 (6th Cir. Ohio 2006)(erroenous jury instruction)
  7. Stallings v. Bagley, 561 F. Supp. 2d 821 (N.D. Ohio 2008)(district court relief, IAC)
  8. Murphy v. Bradshaw, 2008 U.S. Dist. LEXIS 29832 (S.D. Ohio Apr. 11, 2008)(district court, failure to suppress conf)
  9. Dickerson v. Bagley, 453 F.3d 690 (6th Cir. Ohio 2006)(IAC)
  10. Poindexter v. Mitchell, 454 F.3d 564 (6th Cir. Ohio 2006)(IAC)
  • Innocence (since 2005)
  1. “On February 28, 2005, Ohio Common Pleas Judge Richard Niehaus dismissed all charges against Derrick Jamison for the death of a Cincinnati bartender after prosecutors elected not to retry him in the case.” (DPIC)
  • Clemency (since 2005)
  1. John Spirko (2008)
  2. Jeffrey Hill (2009)

In total 27 death sentences have been overturned (or commuted) since 2005. This bolsters Tim Young’s observation that Ohio is not getting much bang for its buck. Out of the 50 death sentences since 2000, I do not know how many were after January 1, 2009. But if that number is 27 or less, then the input/output ratio of Ohio’s death row is roughly a wash.

More interesting, perhaps, are the characteristics of those inmates with death-sentence  affirmed by the Ohio Supreme Court on direct appeal since 2005. Out of 23 defendants,

  • 10 have an IQ 85 or below (including several in the low 70s) that the Ohio Supreme Court afforded some mitigating weight.
  • 1 (additional) inmate was just over the 18 years of age  constitutional floor
  • 2 (additional) inmates has severe mental health disorders (bipolar, psychiotic tendancies, etc)
  • 4 (additional) inmates has chronic addiction problems at time of offense (crack, cocaine, heavy drinking, meth)

= 17 / 23 inmates with severe  limitations on the ability to make sound decisions (with 11 pushing up against constitutional boundaries of IQ and age). This raises serious questions about these offenders being among the most culpable of murderers.

Note: a solid minority of the 23 fit into multiple categories, but I only placed them into one (by descending order)  for counting purpose.


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4 Responses

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  1. Jeff Gamso said, on September 13, 2009 at 2:14 am

    You wondered about the number of persons sentenced to death in Ohio this year: 1.

    You didn’t ask about the number executed: 3

    You certainly didn’t ask about upcoming 2009 executions: 4, if they all go forward; the next is Rommell Broom on Tuesday.

  2. Robert Smith said, on September 13, 2009 at 2:41 am

    Only one death sentence in Ohio this year?

  3. GBLC said, on September 16, 2009 at 4:50 pm

    I am not certain that the number of executions over the last year (or the next one) is relevant to a statistical assessment of the death sentences imposed between 01/1/2000 and today’s date.

    My sense is that the majority of defendants getting executed now, were — like Broom — prosecuted in the 1980’s.

    This appears to me to create the perplexing anomaly that a death sentences may have been proportionate at the time imposed, but not when carried out. Similarly, standards of representation may have been adequate then, which are simply unacceptable now.

    On the other hand, i’m not certain that a 7% death sentence rate for all capital indictments reflects a failure in and of itself. It might reflect a prudent waxing by prosecutors and juries. I, for one, wouldn’t call it a success if 50% of the capital indictments resulted in a death sentence.


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