Created on Monday, 15 July 2013 Written by ANDREW WELSH-HUGGINS,AP Legal Affairs Writer
COLUMBUS, Ohio (AP) — The task always seemed like a tall one: sit prosecutors, defense attorneys, judges and academic experts around a table and ask them to propose changes to Ohio's death penalty law.
Not that the gathered assembly wouldn't come up with ideas. But rather, that nothing resembling a unified voice could emerge from the variety of opinions.
The committee, now deep into its second year of work, made three recommendations June 13 — involving geography, race and the makeup of the law itself — that underscore divisions on the panel.
These differences raise the possibility that committee members will deliver separate and competing reports to Supreme Court Chief Justice Maureen O'Connor, in turn raising questions about what, if any, impact the committee's suggestions will have.
Without basic consensus, "the weight of those recommendations would be substantially weakened, and would lose their effect," said committee member Stephen Schumaker, deputy Attorney General for law enforcement.
Although Schumaker remains confident the committee can pull together a unified report, the votes from a June meeting show just how divided the panel is — even when several members don't make the meeting.
In one vote at the June meeting, the committee recommended that the current death penalty law be restricted based on the types of crimes eligible for capital punishment. The 12-2 vote called for stripping aggravated arson, burglary, robbery, rape and kidnapping from the list of added factors that can elevate an aggravated murder to a case calling for the death sentence.
Instead, the factors would be limited to crimes meant to focus on the worst of the worst criminals: those who kill multiple victims, a child under 13 or a police officer; or those who kill to escape detection or eliminate a witness.
All things being equal, five of the last ten inmates executed in Ohio would not have faced the death penalty had such a rule been in place.
A second recommendation, narrowly approved 8-6, would create a statewide panel run through the Attorney General's office to vet Ohio's capital cases. Somewhat based on the federal model, the panel of former prosecutors would have the final say on whether county prosecutors could bring a capital case.
A third recommendation backs the enactment of a Racial Justice Act to allow inmates to pursue claims of racial bias in state courts. The vote on that measure wasn't available; prosecutors on the panel who weren't present that day also oppose the idea.
Supporters of the three recommendations were justifiably pleased with the outcome. But eight committee members were absent that day, including current and former prosecutors critical of the measures. Another committee member present that day didn't vote — either because she or he left early or came late; court records don't give a person-by-person tally.
One member who didn't vote, Hamilton County Prosecutor Joe Deters, said those supporting those proposals were violating O'Connor's mandate that the task force look at changes to the law, not ways to eliminate it.
"Make no mistake about it, the people that made these proposals, they don't want the death penalty at all, but they know what the chief justice told us," Deters said. "So they're just nipping it away, they're taking the small bites they can get."
The board isn't completely divided. There's general support for better funding of capital defense attorneys, since prosecutors and defense lawyers both agree many problems with death penalty cases arise because of inmates' poor legal representation.
The committee also supports modest efforts aimed at reducing the influence of race, such as requiring prosecutors, lawyers and judges involved in death penalty cases be trained to protect against racial bias. The Racial Justice Act, though, is probably a nonstarter if a fully staffed committee took a revote.
"There are people on this committee who still believe in the death penalty — I believe in the death penalty," said committee chairman James Brogan, a retired appeals court judge. "But I do think it ought to be narrowed."
A report — or reports — on how or whether to do that is due by year's end.