MINORITY REPORTTABLE OF CONTENTSI. Overview of Current Death-Penalty Procedure in Ohio1II. Recommendation 1 – Exclusion of Unrecorded In-Custody Statements3III. Recommendations 30, 32, 33, 35 – Proposals on Race4IV. Recommendations 8 & 9: Enact legislation to exclude fromdeath eligibility and execution those suffering from “serious mental illness” asdefined by legislature.14V. Recommendation 34 – Proposal on Central-Charging Committee16VI. Recommendation 38 – Exculpatory Evidence at Grand Jury21VII. Recommendations 3 & 4 -- Laboratory testing of evidence23VIII. Recommendation 39 – Mandatory Pre-Trial Conferences24IX. Recommendation 51 – Appointment of Counsel25X. Recommendation 52 – Trial judge to control appointmentof defense experts - ex parte hearing allowed… “upon establishing counsel’scompliance with discovery.” Court’s decision is immediately appealable.25XI. Recommendation 36 – Enact legislation to require jury pool listto add “all licensed drivers who are U.S. citizens.”27XII. Recommendation 17 – Requiring Even More Evidence of Guilt at Trial28XIII. Recommendation 47 – Jury Instruction on “Mercy”29XIV. Recommendation 5 – “Proportionality” Review Expansion31XV. Recommendation 20 – Enact legislation to allow defendantto withdraw jury waivers if either phase is reversed.33XVI. Recommendation 27 – Post-Conviction Review – Unlimited Briefing35XVII. Recommendations 11 & 12 – Post-Conviction Review –Standards for Trial Counsel Effectiveness37XVIII. Recommendation 28 – Post-Conviction Petitions –Requiring Depositions and Subpoenas39XIX. Recommendation 43(G) – Clemency Review –Even More Expert Funding40XX. Recommendation 41 – Delays42XXI. Hamstrung Sentencers under Current Law; ImprovementsRejected by Task Force44XXII. ABA “Team”45XXIII. Identification Procedures46XXIV. Conclusion47iiMINORITY REPORT“[J]ustice, though due to the accused, is due to the accuser also. Theconcept of fairness must not be strained till it is narrowed to afilament. We are to keep the balance true.” Snyder v. Massachusetts,291 U.S. 97, 122 (1934), overruled in part on other grounds, Malloy v.Hogan, 378 U.S. 1 (1964).The Joint Supreme Court/Ohio State Bar Association Task Force to Review theAdministration of Ohio’s Death Penalty (hereinafter “Task Force”) was tasked with theassessment of whether the death penalty in Ohio is administered in the most fair andjudicious manner possible; and to determine if the administrative and proceduralmechanisms for the administration of the death penalty in Ohio are in proper form or inneed of adjustment. The Task Force’s mandate specifically provided that “[t]he taskforce shall not review or report on the issue of whether Ohio should or should not havethe death penalty.”In several of its recommendations, however, the Task Force veered off its narrowmandate and is making recommendations that are anti-death penalty. The work of theTask Force was strongly influenced by a pro-defense majority bent on an agenda ofabolition, not fairness.This pro-defense agenda is reflected in several of the recommendations. Some ofthe recommendations would tie the death-penalty system up in knots, creating proceduraland litigative traffic jams that would potentially tie up particular cases in litigation evenmore than is already occurring.One recommendation seeks to cut off the fact-finder from potentially highlyvaluable evidence merely because it was not recorded.One recommendation actually would abolish the death penalty for cases that arebased on aggravated murders occurring during the course of certain violent felonies, i.e.,occurring during rape, kidnapping, aggravated robbery, and aggravated arson. Suchvictims suffer horrific deaths, oftentimes after prolonged kidnapping and/or rape, and theTask Force majority’s answer is to abolish the death penalty in such cases. While such aproposal does not entail outright abolition in all cases, it is certainly anti-death penalty, anarea supposedly off-limits to the Task Force.While the Task Force majority has embraced anti-death penalty and delayinducing proposals, it has rejected proposals that would take the blinders off sentencingjudges and juries to allow a full and fair assessment of the appropriate sentence in acapital sentencing proceeding, including rejecting a proposal that would have allowedconsideration of victim-impact evidence.I. Overview of Current Death-Penalty Procedure in OhioThe death penalty can be available for aggravated murder and terrorism. But the1availability of the death penalty hinges initially on the inclusion of one or more“aggravating circumstances” in the indictment. The death penalty is available only if theindictment includes one or more death-penalty specifications alleging one or more suchaggravating circumstances. See R.C. 2929.04(A); R.C. 2941.14(B).The aggravating circumstances are listed in R.C. 2929.04(A)(1) to (A)(10). Theyinclude: assassination; aggravated murder or terrorism for hire; prior conviction forpurposeful killing or attempted purposeful killing; current killing involving course ofconduct involving purposeful killing or attempted killing of two or more persons; victimwas law enforcement officer; the killing was committed during kidnapping, rape,aggravated arson, aggravated robbery, or aggravated burglary; killing of witness toprevent testimony or in retaliation; killing of victim under age 13; aggravated murderoccurring during terrorism.The prosecution bears the burden of proving the existence of such aggravatingcircumstances beyond a reasonable doubt in the initial “guilt phase” in which thedefendant’s guilt/innocence is determined. R.C. 2929.04(B).If one or more of such aggravating circumstances are proven at the guilt phase,the case proceeds to the sentencing stage, often called the “penalty phase,” in which thejury or three-judge panel shall weigh against such aggravating circumstance(s) a widearray of “mitigating factors.” The mitigating factors may include the nature andcircumstances of the offense, can include the history, character, and background of thedefendant, and can include any number of mitigating factors from a non-exhaustive listset forth in R.C. 2929.04(B). The list includes a catch-all factor allowing the defendantto present, and allowing the sentencer to consider, any factor relevant to whether thedefendant should be sentenced to death. R.C. 2929.04(B)(7). The defense is given “greatlatitude” in presenting evidence of mitigating factors. R.C. 2929.04(C). Using such“wide latitude,” capital defendants often present “mitigating” evidence that goes as farback as the defendant’s childhood.At the penalty phase, the prosecution has the burden of proving beyond areasonable doubt that the aggravating circumstance(s) the defendant was found guilty ofcommitting are sufficient to outweigh the factors in mitigation of the imposition of thesentence of death. R.C. 2929.03(D)(1). The jury hearing the penalty phase mustrecommend the death sentence if it unanimously finds beyond a reasonable doubt that theaggravating circumstance(s) outweigh the mitigating factors. R.C. 2929.03(D)(2).Absent such a finding, the jury shall recommend one of the available life sentences. Id.If the penalty phase is being heard by a three-judge panel, the same unanimity andbeyond-reasonable-doubt standards apply to the question of whether the aggravatingcircumstances outweigh the mitigating factors. R.C. 2929.03(D)(3). The panel mustimpose death if it finds that the aggravated circumstance(s) outweigh the mitigatingfactors. Id. Absent such a finding, the panel shall impose one of the available lifesentences. Id.If a jury is hearing the penalty phase and recommends death, the trial judge must2engage in the same weighing process and must impose death if the judge determinesbeyond a reasonable doubt that the aggravating circumstance(s) outweigh the mitigatingfactors. Id. Absent such a finding, the judge imposes one of the available life sentences.Id.II. Recommendation 1 – Exclusion of Unrecorded In-Custody StatementsThe Task Force majority adopted a proposal requiring that “[a]ny in custodyinterrogation, as defined by Miranda v. Arizona, shall be electronically recorded. If theinterrogation is not electronically recorded, statements made during the interrogation arepresumed involuntary.”This recommendation is accompanied by commentary in the majority reportindicating that the presumption of involuntariness is a rebuttable presumption. But, asthe majority report emphasizes, commentary like this in the majority report has not beenformally approved by the Task Force. The recommendation itself is silent on whetherthis is a mandatory or rebuttable presumption. Either way, the presumption is ill-advised.This proposal exceeds the Task Force’s mandate. The proposal does not “adjust”the “form” of capital-case procedures but rather reaches into the domain of how policeshall gather evidence outside the courtroom. The Task Force does not have the mandateto recommend changes in evidence collection or current police evidence-collectionpractices.Even if this proposal somehow qualified as an effort to improve “procedures” incapital cases, the creation of this special exclusionary rule would be a substantial stepbackwards for the capital-justice system. Questions about the voluntariness of adefendant’s statements during custodial interrogation are properly decided by the trialjudge under current law without any special presumption of involuntariness that couldlead to the exclusion of such statements. A police officer’s testimony about what thedefendant said, and the circumstances surrounding the interrogation, are sufficient toallow the court to make such a determination. Of course, the defense can seek to disputethe officer’s account and, again, the matter of voluntariness would be for the trial judge todecide.The proposal is extremely one-sided. It is apparently based on the presumptionthat the police officer would lie, would make up statements, and/or would coercestatements out of the defendant. Defendants are certainly free to urge suppression basedon such theories under current law. But creating a presumption of involuntariness andexclusion does an injustice to the vast majority of officers who can be counted on toprovide reliable testimony about such matters. And, notably, this concern about thesupposed unreliability of unrecorded information is all a one-way street here, as nosimilar requirement would be imposed on any defense evidence under this proposal. Asbetween the officer and the defendant, the officer’s testimony and evidence is far morelikely to be reliable than the testimony and evidence coming from the accused aggravatedmurderer or terrorist, but only the officer’s testimony is excluded.3This proposed exclusionary rule could lead to the fact-finder going withoutpotentially damning confessions or admissions merely because they were not recorded.As a matter of principle, such an exclusionary rule should be rejected. Exclusionary rulescarry “substantial social costs.” United States v. Leon, 468 U.S. 897, 907 (1984). Asrecognized in Stone v. Powell, 428 U.S. 465 (1976), “the focus of the trial, and theattention of the participants therein, are diverted from the ultimate question of guilt orinnocence that should be the central concern in a criminal proceeding. * * * Applicationof the rule thus deflects the truthfinding process and often frees the guilty. The disparityin particular cases between the error committed by the police officer and the windfallafforded a guilty defendant by application of the rule is contrary to the idea ofproportionality that is essential to the concept of justice.”It is well known that “[t]he principal cost of applying any exclusionary rule ‘is, ofcourse, letting guilty and possibly dangerous criminals go free * * *.’” Montejo v.Louisiana, 129 S.Ct. 2079, 2090 (2009) (quoting Herring v. United States, 555 U.S. 135,141 (2009)). Letting the guilty go free is “something that ‘offends basic concepts of thecriminal justice system.’” Herring, 129 S.Ct. at 701, quoting Leon, 468 U.S. at 908.“‘[T]he rule’s costly toll upon truth-seeking and law enforcement objectives presents a highobstacle for those urging [its] application.’” Herring, 129 S.Ct. at 701.These kinds of exclusionary rules should be limited or abolished. They should notbe expanded for the benefit of accused aggravated murderers and terrorists.III. Recommendations 30, 32, 33, 35 – Proposals on RaceThe Task Force majority adopted a number of proposals made by the “Race andEthnicity Subcommittee.” These proposals would mandate or recommend the following:RECOMMENDATION 30: MANDATETHAT ANY JUDGE WHOREASONABLY BELIEVES THAT ANY STATE ACTOR HAS ACTED ON THEBASIS OF RACE IN A CAPITAL CASE BE REPORTED TO THE OFFICE OFDISCIPLINARY COUNSEL OR TO THE APPROPRIATE SUPERVISORYAUTHORITY, IF NOT AN ATTORNEY.RECOMMENDATION 32: MANDATE THAT AN ATTORNEY MUST SEEKTHE RECUSAL OF ANY JUDGE WHERE THERE IS “A REASONABLE BASISFOR CONCLUDING THAT THE JUDGE’S DECISION MAKING COULD BEAFFECTED BY RACIALLY DISCRIMINATORY FACTORS,” AND SHOULDTHE JUDGE NOT RECUSE, IF THE ATTORNEY STILL BELIEVES THERE ISA REASONABLE BASIS FOR CONCLUDING THAT THE JUDGE’SDECISIONMAKINGCOULDBEAFFECTEDBYRACIALLYDISCRIMINATORY FACTORS, THEN THE ATTORNEY SHALL FILE ANAFFIDAVIT OF BIAS WITH THE CHIEF JUSTICE OF THE OHIO SUPREMECOURT.RECOMMENDATION 33: BASEDUPON ATTACHED DATA SHOWINGTHAT PROSECUTORS AND JURIES OVERWHELMINGLY DO NOT FIND4FELONY MURDERTO BE THE WORST OF THE WORST MURDERS,FURTHER FINDING THAT SUCH SPECIFICATIONS RESULT IN DEATHVERDICTS 7% OF THE TIME OR LESS WHEN CHARGED AS A DEATHPENALTY CASE, AND FURTHER FINDING THAT REMOVAL OF THESESPECIFICATIONS WILL REDUCE THE RACE DISPARITY OF THE DEATHPENALTY, IT SHOULD BE RECOMMENDED TO THE LEGISLATURE THATTHE FOLLOWING SPECIFICATIONS BE REMOVED FROM THE STATUTES:KIDNAPPING, RAPE, AGG. ARSON, AGG. ROBBERY, AND AGG.BURGLARY.RECOMMENDATION 35: ENACT LEGISLATION ALLOWING FOR RACIALDISPARITY CLAIMS TO BE RAISED AND DEVELOPED IN STATE COURTTHROUGH A RACIAL JUSTICE ACT WITH SUCH A CLAIM BEINGINDEPENDENT OF WHETHER THE CLIENT HAS ANY OTHER BASIS FORFILING IN THAT COURT.A. INTRODUCTIONSection 1.2 of the Task Force Guidelines provides that the purpose of the DeathPenalty Task Force is to study the administration of the Ohio Death Penalty and todetermine if any changes are required to ensure it operates in the most fair and judiciousmanner possible.The Race and Ethnicity Committee is thus charged with the duty to ensure that theOhio Capital Punishment system is free of any bias relating to various racial or ethnicgroups. This charge carries with it the implicit duty to first demonstrate actual proof thatsuch bias exists in Ohio capital prosecutions. That showing has not been made.B. McCLESKEYClaims of bias based on race of the defendant and race of the victim are not new.The lead case in this area, McCleskey v. Kemp 1 , was decided by the United StatesSupreme Court in 1987. That case held that statistical studies were not reliable and notdeterminative of this issue. Rather, the Court placed the burden on the defendant toprove that he was specifically targeted on the basis of his race, even while acknowledgingthat the McCleskey district court 2 actually held a lengthy hearing on the use of statisticalevidence to show bias, and found such studies to be flawed and unreliable. The SupremeCourt also acknowledged that this conclusion by the District Court was correct. 3 The1McCleskey v. Kemp, 481 U.S. 279 (1987); McCleskey v. Kemp, 753 F.2d 877 (11th Cir.1985); McCleskey v. Zant, 580 F.Supp. 338 (1984).2McCleskey v. Zant, 580 F. Supp. 338 (1984).3McCleskey v. Kemp, 481 U.S. 279, at 297, (1987). The 11th Circuit also found theDistrict Court’s conclusion as to unreliability of the statistical studies was correct. 753F.2d 877, 893 et seq.5studies at issue were those associated with Professor Baldus. 4(1.)AnalysisThe following brief discussion of McCleskey cases relies on the holdings of allthree McCleskey cases and analysis from an article by Kent Scheidegger, Legal Director,Criminal Justice Legal Foundation. The article can be found at: Rebutting the MythsAbout Race and the Death Penalty, 10 Ohio St. Crim. L. 147 (2012). Reference to thisarticle will be formatted as (Scheidegger, at ____). References to the Federal DistrictCourt decision will be (McCleskey v. Zant, at ____).The trial court hearing was thorough. Extensive testimony was produced andboth sides provided rebuttal material. When all was said and done, the District Courtfound:1.There were serious problems with the Baldus database and the proponentsfailed to prove it was trustworthy. (McCleskey v. Zant, at 360;Scheidegger, at 153).2.None of the models presented account for the alternative hypothesis thatthe race effects observed could also be explained by factors that wereunaccounted for in the database, including strength of case, credibility andavailability of witnesses and standard sentencing considerations.(McCleskey v. Zant, at 362; Scheidegger, at 153.)3.When the unaccounted for factors are included in the analysis of the data,no bias based on the race of the defendant or the race of the victim isfound. (McCleskey v. Zant, at 364 et seq.; Scheidegger, at 153.)4.The evidence produced did not demonstrate any significant race-of-victimeffect in prosecutors’ decisions to seek the death penalty or jurysentencing decisions. (McCleskey v. Zant, at 367; Scheidegger, at 154.)The District Court in McCleskey v. Zant concluded that when the various factorsrelated to strength of case were included in the analysis, it became apparent that neitherrace of the defendant nor race of the victim had any impact on the charging or sentencingdecisions. 5 Even considering just the material Baldus relied on, his study showed no biasfactor in charging based on race of the defendant.This conclusion demonstrates the lack of value in check-list type studies of deathpenalty cases that fail to account for factors that are critically important but cannot easilybe quantified. (As stated previously, strength of case, credibility and availability of4Baldus was a law professor from the University of Iowa. He, along with others,conducted the massive statistical study of the Georgia death penalty that was used in theMcCleskey case. During his career, he studied the use of the death penalty throughout theUnited States.5McCleskey v. Zant, at 367-368.6witnesses, standard sentencing considerations, etc.)Even though the 11th Circuit decided the case on a narrower approach, theyindicated they agreed with the lower court’s finding as to the lack of persuasiveness ofthe Baldus study. 6 The United States Supreme Court reached the same conclusion.7C. DEATH PENALTY TASK FORCE AND PROOF OF RACIAL BIASThe Task Force heard from several opponents of the death penalty, some of whomwere retired elected officials who had previously favored its use. There was apresentation by instructors from Michigan State who were statisticians. They had alsoworked with Professor Baldus, and their studies resembled the work of Baldus. Theydiscussed a statistically based study of the death penalty in states other than Ohio. Theirwork did not include many of the necessary criteria also found missing in the McCleskeycases. They indicated that they did not find statistically significant evidence on race ofthe defendant, but did find such evidence as to race of the victim. The State PublicDefender’s Office has compiled a study of the Ohio Death Penalty, including tracking ofrace of defendant and race of victim. Those statistics are devoid of the factors theMcCleskey decision found necessary to reach an accurate conclusion.Nothing that was presented to the Task Force established a valid conclusion ofracism in regard to race of the defendant, or race of the victim. As previously noted, thepresentation by the Michigan State University instructors included a statement that theirmaterial showed no bias in the capital charging decision based on the race of thedefendant, nor did they account for the type of data that was found lacking in McCleskeyv. Zant, such as strength of case, standard sentencing considerations, credibility andavailability of witnesses, etc. And, as the lower court noted in McCleskey, the inclusionof such information did, in fact, demonstrate the absence of racism in both charging andsentencing.The only conclusion to be drawn from what the committee heard is that there hasbeen no demonstration that charging or sentencing decisions in Ohio are influenced byrace. There is no factual basis to believe that the proposals put forth by the Race andEthnicity Subcommittee are necessary or would be helpful.D. SPECIFIC PROPOSALSRECOMMENDATION 30: MANDATE THAT ANY JUDGE WHO REASONABLYBELIEVES THAT ANY STATE ACTOR HAS ACTED ON THE BASIS OF RACE IN ACAPITAL CASE BE REPORTED TO THE OFFICE OF DISCIPLINARY COUNSEL ORTO THE APPROPRIATE SUPERVISOR IF NOT AN ATTORNEY.Because there has been no demonstration of racism playing a part in capital6McCleskey v. Kemp, 753 F.2d 877 (11th Cir., 1985).7McCleskey v. Kemp, 481 U.S. 279, at 297 (1987). This conclusion about the lack ofprobative value of these attached statistics is unrefuted and remains unchallenged.United States v. Savage, 2013 WL 2060932 (U.S.D.C., E. Dist. Pa., 5-15-13).7prosecutions, this is akin to a solution searching for a problem. However, as with a goodmany of the proposals from the Task Force, it appears to be intended to end the deathpenalty rather than to make it fairer. The term “state actor” obviously refers toprosecutors or police officers. The term “reasonably believe” is very subjective andinappropriate for use under the context of this rule because it allows for harassment ofprosecutors and police for engaging in perfectly acceptable behavior. Accusations ofracism are typically directed at prosecutors in two regards; the charging decision, and theselection of juries. As to the charging decisions, existing law provides a method to raisesuch a claim. McCleskey v. Kemp, 481 U.S. 279 (1987). There is no need or legitimatepurpose for a judge to be “mandated” to report a prosecutor to disciplinary counselbecause a judge “believes” the charge is based on racism. Likewise, there is an existinglegal method for use at trial for defense counsel to raise a claim of bias at voir dire.Batson v. Kentucky, 476 U.S. 79 (1987). Under Batson, a judge can set aside a stateperemptory challenge if he believes that a prosecutor failed to provide a “race neutralreason.” This is a highly subjective decision for the judge and those issues are oftendebated and fought over on appeal. This proposal would require every judge whoupholds a Batson challenge to report the prosecutor to disciplinary counsel. Thisproposed remedy for a non-existent problem resembles the push for “heightened” or“extra due process” that often is raised in death penalty motions and appeals. Thatconcept has been repeatedly rejected by state and federal courts. 8 The proposal at issuehere is absurd and clearly the aim of this proposal is to intimidate prosecutors.As to police officers, a judge has no first-hand knowledge of anything outside thecourtroom. The Death Penalty Task Force has not been presented any informationdemonstrating that police racism is a serious problem and that topic does not appear to bean issue in death penalty appeals. Again, such a proposal serves no purpose but tointimidate law-enforcement.Because the need for this proposal is not demonstrated, and the existing legalremedies are more than adequate, this proposal is both unnecessary and, in fact,detrimental to any concept of fairness.RECOMMENDATION 32: MANDATE THAT AN ATTORNEY MUST SEEK THERECUSAL OF ANY JUDGE WHERE THERE IS “A REASONABLE BASIS FORCONCLUDING THAT THE JUDGE’S DECISION MAKING COULD BE AFFECTED BYRACIALLY DISCRIMINATORY FACTORS” AND SHOULD THE JUDGE NOTRECUSE, IF THE ATTORNEY STILL BELIEVES THERE IS A REASONABLE BASISFOR CONCLUDING THAT THE JUDGE’S DECISION MAKING COULD BEAFFECTED BY RACIALLY DISCRIMINATORY FACTORS THEN THE ATTORNEYSHALL FILE AN AFFIDAVIT OF BIAS WITH THE CHIEF JUSTICE OF THE OHIOSUPREME COURT.8See Branch v. Mississippi, 822 So.2d 36 at p. 42 et seq. (Sup. Ct. of Miss. 2014).Recently, in State v. Griffin, ___ Ohio St.3d ___, 2013-Ohio-5481 (Ohio Sup. Ct.12/19/2013), the Court noted that all constitutionally required special procedures werealready built into Ohio’s death penalty statute.8This proposal is once again a solution in search of a problem with significantnegative consequences. The Task Force mission is to ensure the Ohio death penalty is“administered in the most fair and judicious manner possible.” Before making a changesuch as the one proposed here, it seems reasonable to expect the proponents would shownumerous examples of racist behavior by Ohio’s judges. Such is not the case. Indeed,not one example of such behavior has been documented. Thus, it is hard to comprehendwhy such a draconian remedy as the above should be adopted, that is, unless the realintended purpose is not really “fairness”.Mandating that attorneys “seek recusal” if they have a “reasonable basis” tobelieve the judge’s decision “could be affected” by racism is nonsensical. “Could beaffected” is about as low a burden as can be found. [It is similar to using a standard of“possible” as opposed to probable.] Then, if recusal is denied, requiring the attorney tofile an “affidavit of bias” based on the same pitiful “could be affected” standard, is arecipe for disaster. And, the proposed mandatory filing requirement as to recusals andaffidavits of bias on the flimsiest of grounds will only spur the filings of such documents.The only result of this proposal will be delays, mistrials, and forum shopping. All in“fear” of a problem that simply does not exist. Again, the underlying effect of thisproposal is intimidation, not fairness.RECOMMENDATION 33: BASED UPON ATTACHED DATA SHOWING THATPROSECUTORS AND JURIES OVERWHELMINGLY DO NOT FIND FELONYMURDER TO BE THE WORST OF THE WORST MURDERS, FURTHER FINDINGTHAT SUCH SPECIFICATIONS RESULT IN DEATH VERDICTS 7% OF THE TIME ORLESS WHEN CHARGED AS A DEATH PENALTY CASE, AND FURTHER FINDINGTHAT REMOVAL OF THESE SPECIFICATIONS WILL REDUCE THE RACEDISPARITY OF THE DEATH PENALTY, IT SHOULD BE RECOMMENDED TO THELEGISLATURE THAT THE FOLLOWING SPECIFICATIONS BE REMOVED FROMTHE STATUTES: KIDNAPPING, RAPE, AGG. ARSON, AGG. ROBBERY, AND AGG.BURGLARY.The majority report recommends that the legislature remove the “felony murderdeath specification” 9 from Ohio law. The Racial Disparity Subcommittee bases thisproposal on two grounds. First, a statistic-based analysis showing that the “felonymurder” specification results in death verdicts only 7% of the time, and thus theseoffenses cannot be among the “worst of the worst” death eligible crimes. The premisethat if 93% of R.C. 2929.04(A)(7) specifications do not result in a death penalty provesthat the 7% that do result in a death penalty cannot be “worst of the worst” is a nonsequitur. Actually, that statistic would seem to prove the opposite. Second, anotherstatistic-based allegation that removing this specification will result in a reduction of racedisparity in the Ohio death penalty. Both of these conclusions are flawed. They rely onthe same faulty statistical analysis rejected in McCleskey.9R.C. 2929.04(A)(7) is the death specification at issue here.9(1.)Felony Murder“Felony murder” is a term that has different meanings. Most people use the termto describe an unintentional killing during the commission of a crime. That type offelony murder is codified in Ohio in R.C. 2903.02(B), “cause the death of another as aproximate result of” committing certain offenses. No intent to kill is required.That is not the situation with the Ohio death specification at issue here. R.C.2903.01(B), Aggravated Murder, requires a purposeful killing. In other words, what themajority report refers to as “felony murder” is in fact an offense that requires the state toprove the defendant purposely killed the victim. Also, Ohio’s Aggravated Murder duringa felony specification does in fact include crimes that are the worst of the worst. There isno point in cataloguing those crimes here, but a reading of the summaries of the crimes inthe Attorney General Annual Report will easily demonstrate this. These crimes aregenerally horrible, vicious and shocking. They obviously merit a sentence of death.(2.)StatisticsThe Race and Ethnicity Committee also relies on statistics that purport todemonstrate death verdicts are only returned 7% of the time in cases where the deathspecification is a 2929.04(A) [during commission of a felony] specification. This is not aparticularly informative statistic. The overall state rate for capital indictments resultingin a death sentence is just under 10%. Further, of the 312 defendants sent to death rowthrough 2012, 217 have been sent on at least one felony murder specification. Thus, 68%of those sent to death row arrived with a felony murder specification. The Death PenaltyTask Force’s reference to a 7% success on these specifications is a clever deception thatattempts to minimize the number of “felony murder” death sentences while ignoring thereality of the very large number of those on death row with that particular specification.The assertion in this proposal that “prosecutors…overwhelmingly do not findfelony murder to be the worst of the worst” is absurd. As noted above, 68% of those ondeath row through 2012 arrived with at least one felony murder specification. Thesecases were determined by both prosecutor and jury to be among the “worst of the worst.”Prosecutors are expected to be careful and selective in exercising discretion in deatheligible cases. The conceded fact that the prosecutors do decline to charge capitally inevery conceivably eligible case is a major part of making the system fair. Surely thecommittee majority does not believe indiscriminate charging is the way to go.Also, the indictment pattern across the State has greatly changed since 1981.From 1981 through 2002, there were 15 years in which over 100 capital indictments werereturned. There have been no such 100+ years since then. The totals for the last threeyears are: 1010See Ohio Supreme Court Capital Indictment Index.10201153201236201321When the death penalty was reenacted in 1981, some counties, in an effort to treatall defendants equally, indicted virtually all eligible cases as capital cases, and thenpruned them down as more information was developed about mitigation. That practicehas now ceased. The statewide indictment numbers for the last three years, set forthabove, are the three lowest full year totals since the current statute became effective inmid-October 1981.In the context of an area which contains so many subjective criteria, statistics maywell support death penalty by quota, but not through fairness.Finally, law-enforcement in Ohio is constitutionally centered on a county basis 11 ,each county has its own prosecutor, its own grand jury, and more important, each countyhas its own particular law enforcement concerns and priorities. Ohio has many largeurban counties and it has even more mid-size and small counties. Each one is free toelect prosecutors who best represent the concerns of its citizens. Some variation inpriorities is natural and proper.The proponents of the proposals of the Race and Ethnicity Subcommittee have notpresented a factual basis to justify the changes they seek. They do, however, seek tofurther the use of unnecessary restrictive rules and laws which are not aimed at fairness,but at abolition. A request for a moratorium made by one of the subcommittees early onin the process was removed from consideration by the Supreme Court because the TaskForce guidelines prohibited such action. 12 The proponents of the moratorium haveresponded by flooding the Task Force with proposals that are designed to achieveabolition under another name.RECOMMENDATION 35: ENACT LEGISLATION ALLOWING FOR RACIALDISPARITY CLAIMS TO BE RAISED AND DEVELOPED IN STATE COURTTHROUGH A RACIAL JUSTICE ACT WITH SUCH A CLAIM BEING INDEPENDENTOF WHETHER THE CLIENT HAS ANY OTHER BASIS FOR FILING IN THAT COURT.The majority recommends the enactment of a “Racial Justice Act” which wouldpermit capitally charged or sentenced persons to present and prove claims of racial biasbased on statistical analysis of unrelated cases. Review of like legislative efforts by thefederal government and other states overwhelmingly demonstrates that a “Racial JusticeAct” in Ohio would undermine the enforcement of Ohio’s death penalty without11Ohio Const. Art. X, Sec. I Counties; R.C. 309.01, R.C. 309.08(A), Crim. R. 6.The Task Force guidelines required this conclusion. See Task Force OperatingGuidelines Section 1.0, General Guidelines; Section 1.2, Purpose.1211promoting racial justice.(1.)The Federal Racial Justice Act (RJA)In 1988, Congress considered the first proposed Racial Justice Act. RepudiatingMcCleskey’s requirement to show case-specific, intentional discrimination, the proposedRJA authorized the use of statistical evidence to establish an inference of discrimination,which could be rebutted by the government. 13 The RJA as originally framed did not passeither the Senate or the House in 1988, and several revised versions proposed between1989 and 1994 were not enacted. 14In their seminal review, California Attorney General Daniel E. Lungren andSpecial Assistant Attorney General Mark L. Krotoski explain the major consequenceshad the proposed legislation been enacted, not only on the enforcement of the deathpenalty, but on the criminal justice system as a whole. 15 Lungren and Kotoski arguecogently that in shifting the focus away from the particular facts giving rise to a deathsentence, the proposed legislation is antithetical to the Constitution’s requirement thateach defendant be sentenced on the specific facts of his or her crime and background.The authors correctly observe that each capital case is a unique amalgam of factualcircumstances, and that the outcome of each case represents the product of the assessmentof numerous variables, including the strength of the available evidence, and witnessavailability, credibility, and memory. The authors conclude, “Quite simply, whetherracism may have infected a particular case cannot be inferred from statistics from anygroup of cases. The fundamental premise of the RJA is unsound and unworkable.” 16Lungren and Krotoski also explain why legislation like the proposed RJA willhamper the states’ ability to enforce the death penalty. They note the protracted litigationwhich an RJA is likely to generate, as well as the substantial cost in responding tostatistical claims. Their concerns are justified, in view of the already lengthy appellateand post-conviction reviews in capital cases. An RJA which permits non-case specificclaims undoubtedly “would establish a new claim and opportunity for capital defendantswhich has nothing to do with the merits of their case, resulting in more delay andlitigation.” 17(2.)State RJAsNorth Carolina’s RJA, enacted in 2009, permitted the use of statistical evidence inclaims that race was a significant factor in decisions to seek or impose the death penalty.13Olatunde C.A. Johnson, Legislating Racial Fairness in Criminal Justice, 39 Colum.Hum. Rts. L. Rev. 233, 238-239 (2007).14Id. at 239-240.15Daniel E. Lungren and Mark L. Krotoski, The Racial Justice Act of 1994 –Undermining Enforcement of the Death Penalty Without Promoting Racial Justice, 20 U.Dayton Law Review (1995).16Id. at 664-665.17Id. at 669.12It applied retroactively, providing virtually all of the state’s capitally sentenced prisonersthe opportunity to raise claims. 18 The North Carolina legislature repealed the RJA in2013. In signing the repeal legislation, Governor Pat McCrory confirmed, as prosecutorspredicted, that nearly every death row prisoner, regardless of race, made claims under theAct. “The state’s district attorneys are nearly unanimous in their bipartisan conclusionthat the Racial Justice Act created a judicial loophole to avoid the death penalty and not apath to justice.” Governor McCrory agreed that the law had effectively banned capitalpunishment. 19With the repeal of North Carolina’s RJA, Kentucky is the only state which hasenacted an RJA that is currently in force. However, Kentucky’s RJA differs in importantrespects. It permits a capitally charged defendant to present in a pre-trial hearingstatistical or other evidence that race was a factor in the decision to seek a sentence ofdeath at the time the death sentence was sought. The defendant is required to “state withparticularity how the evidence supports a claim that racial considerations played asignificant part in the decision to seek a death sentence in his or her case,” and has theburden of proving “by clear and convincing evidence that race was the basis of thedecision to seek the death penalty.” 20 There are no provisions for post-trial claims.While lauding the passage of Kentucky’s RJA, one commentator also found the“actual effect” of the legislation “difficult to assess.” Among other things, thecommentator noted a survey in which several public defenders reported that the RJA wascompelling prosecutors to invoke the death penalty in every eligible case. 21(3.)A “Racial Justice Act” in Ohio would undermine the enforcement ofOhio’s death penalty without promoting racial justice.There are no reasons to believe that an RJA in Ohio would prove compatible withenforcing capital punishment. Ohio’s capital cases are no less complex, and, consistentwith constitutional requirements, the focus must remain on the specific facts andcircumstances of each defendant and his or her crime. Given the opportunity to raisenon-case specific claims of racial disparity, like those permitted by the proposed federaland repealed North Carolina RJAs, every death-sentenced prisoner in Ohio may beexpected to raise such claims, even where the particular facts and circumstances render itextremely unlikely that race was a significant factor in charging or sentencing thedefendant. Nor are there any reasons to expect that a limited approach modeled onKentucky’s RJA would achieve better results.The “bottom line” is that a “Racial Justice Act” in Ohio would undermine theenforcement of Ohio’s death penalty without promoting racial justice.18Michael L. Radelet and Glenn L. Pierce, Race and Death Sentencing in North Carolina,1980-2007, 89 N.C.L. Rev. 2119, 2121-2122 (2011).19“North Carolina governor signs repeal of Racial Justice Act,” UPI NewsTrack, June21, 2013.20Ky. Rev. Stat. Ann. Section 532.300.21Note 1, supra at 243-244.13IV. Recommendations 8 & 9: Enact legislation to exclude from death eligibility andexecution those suffering from “serious mental illness” as defined by legislature.SummaryThe majority’s proposal is unworkable, unnecessary, and unprecedented. Thereare already legal protections to prohibit the execution of individuals who are minors,intellectually disabled, and insane. The majority seeks to add to this list anyone thatsuffers a “serious mental illness.” This proposal would prohibit the execution ofmurderers who fully understand the crimes they committed. The proposal creates a fieldday for unnecessary delay and costly expenditures for experts. Of course this will alsogenerate more delay at the post-conviction stage.Public PolicyAt any given time, a majority of Americans are said to be in support of the deathpenalty. Ohio’s sentencing laws are based on three considerations: deterrence,rehabilitation, and retribution. A death sentence is society’s way of declaring thatrehabilitation is not possible. The focus then must turn on the level of deterrence and theappropriateness of the punishment.The majority’s proposal wants the law to state that capital punishment isinappropriate for anyone diagnosed with a serious mental illness. But the proposal doesnot define serious mental illness and the only current definitions would clearly includeindividuals who were aware of their actions. Congress has defined serious mental illnessas “persons 18 years and over, who currently or at any time during the past year, have adiagnosable mental, behavioral, or emotion disorder of sufficient duration to meetdiagnostic criteria specified in the DSM (diagnostic and statistical manual of mentaldisorders), that has resulted in a functional impairment which substantially interferes withor limits one or more major life activities.” 22 The majority of incarcerated defendantswould be able to find an expert to claim that they fit this description. There are hundredsof diagnosable mental disorders contained in the DSM-IV. According to the NationalInstitute on Mental Health, about one in four adults has a diagnosable mental disorder. 23One in seventeen adults has a “serious mental illness.” 24 Expanding the prohibition tosuch a large segment of society is unnecessary and will only serve to induce dangerouscriminals to feign mental illness. Adopting the majority’s proposal would effectivelyeliminate capital punishment.As discussed below, adequate legal protections already exist. Ohio prohibitsexecution of people who are insane or intellectually disabled. The majority’s proposalseeks to prohibit executing anyone else. There are no limits on the prohibition – itincludes anyone with a serious mental illness regardless of their ability to appreciate the221992 ADAMHA Reorganization Act (P.L. 102-321).http://www.nimh.nih.gov/health/publications/the-numbers-count-mental-disorders-inamerica/index.shtml.24Id.2314nature, consequences, or wrongfulness of their actions or to conform their conduct to thelaw. Even more narrowly-tailored similar proposals have been rejected by other statesand Ohio’s legislature should do the same.LawIn 2002, the United States Supreme Court prohibited the execution of thementally retarded. 25 The Ohio Supreme Court adopted Atkins later the same year. 26There is no precedent which extends Atkins and Lott to defendants suffering from“serious mental illness.” 27 There is “no evidence that the execution of such offenders isinconsistent with ‘evolving standards of decency.’” 28 In stark contrast to mentalretardation, “[m]ental illnesses come in many forms; different illnesses may affect adefendant's moral responsibility or deterrability in different ways and to differentdegrees.” 29 “The term ‘mental illness’ does not necessarily equate with the definition oflegal incompetency.” 30 The majority proposal would expand this precedent to includeindividuals who are legally and morally responsible for their crimes.A categorical ban exempting mentally ill defendants from death sentences isunnecessary given existing judicial safeguards. The Ohio Revised Code explicitlypermits the judge and jury in a capital case to consider a defendant’s mental illness as amitigating factor. 31 Reviewing courts may also examine a defendant’s mental state whenscrutinizing a death sentence. 32 “It has long been recognized that ‘a person [who] lacksthe capacity to understand the nature and object of the proceedings against him, toconsult with counsel, and to assist in preparing his defense may not be subjected to atrial.’” 33 “Fundamental principles of due process require that a criminal defendant who islegally incompetent shall not be subjected to trial.” 34Ohio also limits punishment of those deemed insane. A judge or jury may find adefendant suffering from severe mental illness not guilty by reason of insanity, in whichcase the defendant would not be subject to a criminal sentence. 35 In Ford v. Wainwright,25Atkins v. Virginia, 536 U.S 304 (2002).State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625.27See State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 155 (“We have found nocourt that has held that it violates the Eighth Amendment to impose a death sentence on adefendant who was severely mentally ill at the time of the offense.”).28Id., quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)(plurality opinion).29Hancock at ¶ 157.30State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, quoting State v. Berry, 72 OhioSt.3d 354 (1995), at the syllabus.31See R.C. 2929.04(B)(3) and (B)(7).32See State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283.33State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶ 155, quoting Drope v.Missouri, 420 U.S. 162, 171 (1975).34Skatzes, citing Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966);see State v. Berry, 72 Ohio St.3d at 359.35See R.C. 2945.40.2615477 U.S. 399 (1986), the United States Supreme Court held that the Eighth Amendmentprohibits imposing the death penalty on a prisoner who is insane. Ford also requiredstates to implement sufficient procedures to allow defendants to challenge theircompetency to be executed. Ohio has done this in R.C. 2949.28 and R.C. 2949.29.In Ohio, a convict is presumed not to be insane. R.C. 2949.29(C). The defendantbears the burden of proving insanity by a preponderance of the evidence. R.C. 2949.28provides a mechanism for a convicted death row inmate to suspend the execution of hisdeath sentence if that inmate meets the definition of “insane” defined in subsection (A),which states:“As used in this section and section 2949.29 of the Revised Code,“insane” means that the convict in question does not have the mentalcapacity to understand the nature of the death penalty and why it wasimposed on the convict.”In Panetti v. Quarterman, 551 U.S. 930, 959 (2007), the Court held that Ford didnot foreclose inquiry into whether or not a defendant has a rational understanding of thereasons for his execution. In light of Panetti, a defendant must have a rationalunderstanding of the “reasons for his punishment.”Ohio has multiple avenues of legal protection available to individuals who cannotappreciate the wrongfulness of their actions, who don’t understand the reason forpunishment, or who cannot conform their actions to the law. Ohio’s current laws areconsistent with precedent from the United States Supreme Court and are similar to lawsin other states.ConclusionThe creation of a “new, ill-defined category of murderers who would receive ablanket exemption from capital punishment without regard to the individualized balancebetween aggravation and mitigation in a specific case,” 36 is wholly unnecessary given theexisting statutory and procedural safeguards. The presence of mental illness does notautomatically negate the goals of capital punishment, namely deterrence and retribution.Defendants suffering from severe mental illness should be dealt with on an individualbasis.V. Recommendation 34 – Proposal on Central-Charging CommitteeTo “address cross jurisdictional racial discrepancy,” the Task Force majorityfurther recommends that the General Assembly create a “Death Penalty chargingcommittee” to be housed in the Ohio Attorney General’s Office and to consist of “formercounty prosecutors appointed by the Governor and members of the Ohio AttorneyGeneral’s staff.” County prosecutors wishing to seek the death penalty must submit thecase to this “charging committee,” which would then “approve or disapprove of thecharges paying particular attention to the race of the victim(s) and defendant(s).” This36Hancock at ¶ 158.16vague recommendation suffers from a faulty premise, offers no standards (at least noproper standards), will result in needless delays, and creates constitutional concerns.Faulty PremiseThe Task Force majority apparently believes that in seeking the death-penaltyCounty Prosecutors discriminate – either intentionally or unintentionally – againstAfrican-Americans. But the so-called “racial discrepancy” behind this belief is a myth.The reality is that there is no evidence whatsoever that County Prosecutors aredisproportionally seeking the death penalty against African-Americans or any other racialgroup.The claims of “racial discrepancy” are apparently based on comparing the generalpopulation in Ohio with the demographics of those against whom the death penalty issought and/or those who are on death row. But this oversimplified statisticalmethodology is, of course, flawed. Raw statistics – even when generated from“sophisticated statistical studies” – do not take into account the “innumerable factors thatvary according to the characteristics of the individual defendant and the facts of theparticular capital offense.” McCleskey v. Kemp, 481 U.S. 279, 294 (1987).In other words, comparing death-penalty statistics with the general populationdoes nothing to prove a racial discrepancy. What matters is whether similarly-situatedindividuals are likely to be charged differently because of their race. And on thisquestion, there is no evidence – either within any particular county or across Ohio – thatCounty Prosecutors disproportionately seek the death penalty based on the race of eitherthe murderer or the murdered. Prosecutors are (rightly) not required to explain why theyseek the death penalty in particular cases, id. at 297, but the mere absence of such anexplanation is no basis to infer discrimination based solely on statistics. The aggravatedmurderers who are on death row are there not because of racial discrimination; they arebecause they “committed an act for which the United States Constitution and [Ohio] lawspermit imposition of the death penalty.” Id.Indeed, the Task Force’s recommendation of a charging committee does more toprove the absence of any racial discrepancy in Ohio’s death penalty. If there really is aracial discrepancy, then County Prosecutors’ decision not to seek the death penalty wouldbe just as much in need of oversight as the decision to pursue the death penalty. If therereally is a racial discrepancy, then once death-penalty charges are filed, CountyProsecutors should be monitored during any plea discussions, pre-trial proceedings, andthe trial and appeal. And if a racial discrepancy really does exist, then one would expectto hear a similar outcry in cases not involving the death penalty. That the Task Forcerecommends a charging committee in death cases but then does nothing to address theseother areas of prosecutorial discretion is strong proof that even the Task Force majoritydoes not really believe that County Prosecutors are discriminating against AfricanAmericans.In short, prosecutorial discretion is “essential to the criminal justice process,” id.,and there is simply zero evidence that County Prosecutors in Ohio have abused this17discretion so as to justify a “charging committee” to oversee their decisions to seek thedeath penalty.No Proper StandardsUnder the Task Force majority’s recommendation, the charging committee wouldhave the power to “approve or disapprove” of all death-penalty prosecutions in Ohio.But the recommendation says nothing of what standards the charging committee wouldapply, thus leaving each individual member of the committee to apply his or her ownsubjective standards of what constitutes an appropriate death-penalty case.If the charging committee is supposed to review the evidence to determinewhether the facts of the case meet the statutory criteria for the death penalty, then there isno reason to believe that the charging committee would be any more capable of makingthis determination than the County Prosecutor. Even if the County Prosecutor wassomehow unqualified to assess the evidence of the case, there already exists a “chargingcommittee” to assure that there is enough evidence to support the charges; it is called theGrand Jury. And if the Grand Jury were not a sufficient check on the CountyProsecutor’s assessment of the evidence, then the trial and appeals processes – whichincludes the Ohio Supreme Court’s independent sentence evaluation – most certainlywould.Perhaps the Task Force intends the charging committee to determine whether adeath-penalty prosecution is appropriate in light of non-statutory factors – i.e., localresources, the likelihood that a jury from that county would convict, etc. But again, thereis no reason to believe that the charging committee would be any more capable ofweighing these factors than the County Prosecutor. The County Prosecutor – who isdirectly accountable to the voters of his or her county – will know these area-specificfactors far better than a committee composed of out-of-county former prosecutors andbureaucrats from Columbus.While the Task Force majority’s recommendation provides no clear standards forthe charging committee, it does instruct the committee to pay “particular attention to therace of the victim(s) and defendant(s).” The irony here is palpable: A chargingcommittee created to address “racial discrepancy” is expressly instructed to makecharging decisions based on race. But this instruction is not just ironic, it is offensive. Aprosecutor should never – never – make a decision to file (or not file) charges (or anyother decision) based on the race of the defendant or the victim.Indeed, one wonders how the charging committee would follow this instruction inpractice. Will the committee keep running tabs of “African-American,” “Caucasian,” and“Other” defendants and victims? Rather than making prosecutorial decisions based onevidence, law, and other legitimate factors, the committee will most likely spend its timecontinually comparing the numbers in these racial categories with the general populationin Ohio to make sure that no one category is over or under represented. This wouldamount to a quota system in capital prosecution.18There are more questions about how the committee will pay “particular attention”to race. If the committee approves a death-penalty case in Cuyahoga County against anAfrican-American defendant with a Caucasian victim, will it then feel obligated toapprove the next such request in Hamilton County, lest there be an appearance thatAfrican-Americans are treated differently in opposite corners of the State? Equallytroublesome, will the committee also feel obligated to disapprove the next such legitimaterequest in Cuyahoga County, lest there be an appearance that African-Americans aretreated unfairly in that county? Conversely, will the committee feel obligated to approvethe next case involving a Caucasian defendant and African-American victim in CuyahogaCounty? What if in a particular case there are multiple defendants or victims of differentraces? Will the committee – for no other reason but to keep the running tally of deathpenalty cases in line with the general population – feel obligated to approve the deathpenalty for one defendant or victim, but not for the other?Instructing the charging committee to “pay particular attention” to race will notaddress the Task Force’s perceived racial discrepancy. It will only make the deathpenalty in Ohio more racially divisive, and it will do so when there was no racialdiscrepancy to begin with. If there really is a racial discrepancy in Ohio’s death penalty –and there is not – then requiring a charging committee to approve or disapprove of deathpenalty charges based on race will not solve the problem. “The way to stopdiscrimination on the basis of race is to stop discriminating on the basis of race.” ParentsInvolved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007).Needless DelaysCreating a charging committee will also result in needless delays. If the chargingcommittee’s approval is a prerequisite to pursuing the death penalty, then the first orderof business for every death-penalty defendant will be to challenge the chargingcommittee’s approval. Death-penalty defendants already spend considerable time andeffort litigating numerous (often frivolous) issues. Creating a charging committee willonly add more litigation and more delay.The lack of any proper standards discussed above will only make this timeconsuming litigation more wasteful. When death-penalty defendants challenge thecharging committee’s approval of their cases—and they will—the lack of properstandards for the charging committee makes review of the approval impossible. Callingballs and strikes is difficult enough; it is impossible when there is no strike zone.One thing is for certain, though: Every death-penalty defendant will argue thatthe charging committee failed to properly pay “particular attention to the race of thevictim(s) and defendant(s).” The defendant will want records of prior cases submitted tothe charging committee to compare his or her case against the committee’s priorapprovals and disapprovals. Gathering and reviewing these records will take upinvaluable judicial resources. Naturally, the defendant will think that he or she is entitledto more records than what is provided, and obtaining the desired records will most likelybe the subject of separate litigation. And make no mistake about it. A signature featureof death-penalty litigation in Ohio will be the defendant arguing that the charging19committee approved his or her case precisely because of the defendant’s or victim’s race.The argument will go something like this: Had either the defendant or the victim been ofa different race, the charging committee would have surely disapproved the deathpenalty. Again, the irony is inescapable: A charging committee ostensibly created to“address cross jurisdictional racial discrepancy” will inevitably be accused of racialdiscrimination.Constitutional ConcernsNot only is the Task Force’s recommendation of a charging committee ill-advisedas a matter of policy, but there are constitutional concerns as well. To start, the TaskForce does not say exactly how the charging committee will be created. 37 The OhioConstitution states that the “general assembly shall provide by general law for theorganization and government of counties.” Ohio Const., Art. X, Sec. 1. As part ofcreating the legal framework for county government, the legislature enacted R.C. Chapter309, Prosecuting attorney. The powers and duties of the county prosecutor are set forthin R.C. 309.08 and R.C. 309.09, which include the prosecution of crime in the county.R.C. 309.08(A). No one else is given this authority (there are some specific exceptionsas to the duties of the Attorney General that are specifically stated, and that do not referto a power to set aside charges or portions of charges obtained by a county prosecutorfrom a county grand jury). R.C. Chapter 2939, Grand juries, establishes the working ofthe grand jury. The county prosecutor is designated as the officer who conducts theindictment process, R.C. 2939.10 (with some specifically enumerated exceptions for theAG or special prosecutor). There is no provision in Ohio law for the attorney general, oranyone else, to exercise veto power over a charge returned by a grand jury.Because Article X of the Ohio Constitution gives only the legislature the power tocreate/change the operation of county government, only the legislature can create a limiton the power of the county grand jury and prosecutor. Any limit on the CountyProsecutor’s authority to prosecute felonies in his or her county must be accomplishedthrough statute. Any attempt to create the charging committee through non-legislativemeans (i.e., by procedural rule) would be unconstitutional.Moreover, prosecuting crime is a quintessential executive function. Although theTask Force’s recommendation as currently worded states that the charging committeewould be housed in the executive branch (the Attorney General’s Office), any attempt byeither of the other government branches to limit the charging committee’s authoritywould violate separation-of-powers principles, which are an essential component toOhio’s constitutional structure. State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2414, ¶¶39-54.37At the final meeting of the Task Force on 4/10/14, the Chairman asked theminority if there was a constitutional objection to this proposal. He was told yes, thatonly the Ohio legislature could make this change. The final draft of the majority reportnow indicates that this recommendation requires legislative action. However, there is nosuch language in the actual recommendation.20In the end, the following passage from the United States Supreme Court explainsperfectly why the Task Force’s recommendation of a charging committee is ill-advised:Where the discretion that is fundamental to ourcriminal process is involved, we decline to assume thatwhat is unexplained is invidious. In light of the safeguardsdesigned to minimize racial bias in the process, thefundamental value of jury trial in our criminal justicesystem, and the benefits that discretion provides to criminaldefendants, we hold that the Baldus study does notdemonstrate a constitutionally significant risk of racial biasaffecting the Georgia capital sentencing process.McCleskey, 481 U.S. at 313. Just as the statistics in McCleskey were insufficient to showthat Georgia’s death-penalty system was unconstitutional, the claims of “racialdiscrepancy” in Ohio provide no good reason to create a charging committee to overseeCounty Prosecutors’ decision to pursue death-penalty cases.VI. Recommendation 38 – Exculpatory Evidence at Grand JuryThe Task Force majority (10-9) urged that legislation be adopted “to require aprosecutor to present to the Grand Jury available exculpatory evidence of which theprosecutor is aware.”In United States v. Williams, 504 U.S. 36, 51-52 (1992), the United States SupremeCourt rejected the notion that there is a duty on the part of the prosecutor to presentexculpatory evidence to the grand jury. The Court cited several reasons for rejecting such arequirement. The Williams Court noted that a grand jury investigation can investigatemerely on suspicion that the law was violated or even because it wants assurance that thelaw was not violated. The investigation need not identify the offender it suspects, or eventhe precise nature of the offense it is investigating. Moreover, the grand jury sits not todetermine guilt or innocence, but to assess whether there is an adequate basis for bringing acriminal charge.As recognized in Williams, requiring the prosecutor to present exculpatory as well asinculpatory evidence would alter the grand jury’s historical role, transforming it from anaccusatory to an adjudicatory body. To make the assessment of whether an accusationshould be made, it has always been thought sufficient to hear only the prosecutor’s side,since the finding of an indictment is only in the nature of making an accusation, which laterwill be tried and determined.In addition, as Williams recognized, it is well settled that a defendant cannotchallenge the sufficiency of the evidence supporting the grand jury’s issuance of anindictment. But imposing a duty to present “exculpatory” evidence would become a form ofinsufficiency challenge, since a complaint about the sufficiency of the evidence couldalways be recast as a complaint that the prosecutor’s presentation was “incomplete” or“misleading.”21Little would be gained by the Task Force’s “exculpatory evidence” proposal. Theconcept of “exculpatory evidence” involves favorable evidence that would be material in theproceeding because it would create a reasonable probability of a different outcome in thatproceeding. But the threshold for indictment in the grand-jury process is merely thestandard of probable cause, and it would be very rare that a piece of evidence would be so“exculpatory” that it would defeat a finding of probable cause. See, e.g, State v. Iacona, 93Ohio St.3d 83 (2001). What might be “exculpatory” at a trial governed by a beyondreasonable-doubt standard would be unlikely to be “exculpatory” at the grand-jury phase soas to defeat probable cause. Id. at 96 (“Determination of the merits of the competingprosecution and defense theories, both of which were credible, ultimately was a matter for afactfinder at trial.”).In addition, under normal exculpatory-evidence standards, the entire trial record isassessed in determining whether the evidence is “exculpatory.” This usually involves a fulltrial proceeding resulting from testimony from many witnesses. At the grand-jury phase,however, the prosecution is not expected or required to develop all of the testimony fromthese many witnesses, and it is often premature to make an assessment of the “exculpatory”nature of purported “favorable” evidence/information at that stage.While there is little benefit to be gained by requiring assessments of “exculpatory”value at the grand jury stage, it is clear that this proposal, like with the central-chargingcommittee proposal, would create delay-inducing litigation. It is very likely that the defensewould file motions to dismiss seeking to have the court engage in an inventory of all of theevidence presented to the grand jury and all of the evidence known to the prosecution orpolice. It is very likely that the defense would seek to subpoena all of the informationpresented to the grand jury and all of the information known to the prosecutor. Such timeconsuming assessments would inevitably delay trial, would invade the usual secrecy of thegrand jury proceedings, and would invade the prosecutor’s work-product privilege in manyinstances by demanding that prosecutor explain why particular items of evidence werethought not to be exculpatory at the time.The commentary accompanying Task Force Recommendation 38 contends that thepresentation of exculpatory evidence at the grand jury would include evidence of thedefendant’s mental illness or low intelligence and other mitigating factors. But “mitigatingfactors” are not even properly presented to the grand jury. The grand jury decides whetherthere is probable cause that particular aggravating circumstance(s) exist. The grand jurydoes not decide whether the death penalty would be the appropriate sentence afterconsidering “mitigating factors.” The penalty-phase jury/panel performs that task.The commentary also relies on a policy of the United States Department of Justice,which is quoted as requiring that federal prosecutors disclose to the grand jury “substantialevidence that directly negates the guilt of a subject of the investigation * * *.” It is notable,though, that the Task Force recommendation goes far beyond this federal policy. The TaskForce recommendation contains no “substantiality” requirement or direct-negationrequirement. In addition, the federal policy makes it clear that a violation of the policyshould not result in dismissal of the indictment, but the Task Force recommendation doesnot include any “no dismissal” language. The overbreadth of Recommendation 38 in22comparison to the federal policy confirms that the recommendation would be a font of timeconsuming pre-trial litigation in Ohio courts.Given that the Task Force recommendation goes far beyond the federal policy, andgiven that the recommendation provides so little benefit while creating the detriment oftime-consuming litigation, Recommendation 38 is extremely unwise.VII. Recommendations 3 & 4 -- Laboratory testing of evidenceThe majority has approved two recommendations concerning the laboratorytesting of evidence.The majority first recommends the enactment of procedures through which thedefendant in a capital case may obtain re-testing in an accredited laboratory of “evidenceof the sort customarily subject to testing in a laboratory.” The recommendationspecifically excludes “fingerprint evidence.” Where evidence has been tested by an unaccredited laboratory at the direction of police or prosecutors, the defense may demand are-test of the evidence by an accredited laboratory at the state’s expense. The results ofthe first test will not be admissible at trial.The majority’s proposed procedures include special rules where testing will likelyconsume or destroy the evidence. If an indictment has issued, the trial court must grantpermission before the testing is done. Where no indictment has issued, the testing maybe done without court authorization, but only by an accredited laboratory. In the eventthat the special procedures are not followed, and testing by a non-accredited laboratoryhas consumed or destroyed the evidence, the results of the testing will be presumptivelyinadmissible. The presumption may be overcome, “for good cause shown,” and subjectto an “appropriate” instruction by the trial court on the weight the jury may give to theresults.Under the majority’s proposal, defense forensic experts shall also be required torely on testing by accredited labs, at the request of the prosecution.The majority’s proposal defines “accredited lab” as any laboratory accredited bythe American Society of Crime Laboratory Accreditation Board (ASCLD/LAB);Forensic Quality Services, A.K.A. National Forensic Science Technology Center; or theAmerican Association for Laboratory Accreditation (AALA).Although the majority’s intentions are laudable, the proposed procedures raisepractical concerns. No provision is made for evidence tested by a non-accreditedlaboratory before the enactment of the proposed procedures. Automatically excluding theresults in such circumstances may not serve the interests of justice, where apart from nonaccreditation of the laboratory there are no reasons to question the reliability of theresults.The proposal’s specific identification of accreditation agencies does not accountfor the possibility that new accrediting agencies could be established.23The category of evidence or testing potentially subject to the majority’s proposal– “evidence of the sort customarily subject to testing in a laboratory” – is quite broad, andcould be subject to dispute. For example, would it include all examinations of firearms,or all toxicology tests? Also, the specific exclusion of “fingerprint evidence” may appeararbitrary. Specific identification of the testing subject to the accreditation requirement isprobably necessary. This would also allow for special requirements for specific tests.For example, where DNA testing is to be done by an accredited private lab, the state hasa legitimate interest in ensuring that the testing method used is compatible with CODISand will meet FBI upload requirements.The majority’s proposal that defense forensic experts “be required to rely ontesting by accredited labs” suggests that such experts are not directly subject to otherrequirements. A defense forensic expert subject to the proposed procedures should beexplicitly required to meet the same qualification as a forensic scientist employed by agovernment lab, e.g., to be a qualified analyst working in an accredited lab, meetingcontinuing education and proficiency testing requirements.The majority’s proposal does not address “observation” of testing, which isfrequently requested by defense forensic experts. Such observation does not enhance thereliability of testing, but in fact increases distraction and therefore the risk of error.Finally, in authorizing the defense to demand a re-test at the state’s expense, themajority’s proposal could entail significant costs, in the event that the defense seeksopen-ended testing by a private laboratory. In some recent death penalty cases, suchcosts have exceeded six figures.The majority further recommends enactment of a general statutory requirementthat “all crime labs in Ohio” be “certified by a recognized agency as defined by the Ohiolegislature.” The majority’s general recommendation, if enacted, would renderunnecessary the re-testing procedures previously recommended. It also leaves open thetype of legal and practical questions which the more specific proposal at least in partattempts to address, e.g., the circumstances if any under which testing may be done by anun-accredited lab, or the admissibility of lab results done by a hospital or lab that is notsubject to the accreditation requirement.VIII. Recommendation 39 – Mandatory Pre-Trial ConferencesThe Task Force majority (10-5) adopted a proposal recommending mandatory pretrial conferences in which issues of discovery compliance are vetted and the partieseventually make declarations that they have complied with their discovery obligations. Butan objectionable provision in the proposal would require that “[t]he pre-trial conferenceshall be ex parte upon the request of defense counsel and upon good cause shown as tomatters related to defense experts but shall be on the record.”This part of the proposal is objectionable because it is too broad and one-sided. Exparte conferences should be discouraged, as they allow the party that is present to makerepresentations that would be disputed if the other side were present. The transcript of the24ex parte conference then goes up on appeal without the other side having had a chance todispute matters to begin with. A “good cause shown” standard is also too general, as no exparte conference should be allowed for the defense unless confidential, privileged matterswould need to be disclosed.The proposal is also one-sided because it only allows the defense, and not theprosecution, to seek an ex parte conference. The circumstances inducing the need for aprosecution-requested ex parte conference could include problems of witness protection andsecurity.IX. Recommendation 51 – Appointment of CounselThe majority’s recommendation that the presiding trial judge or administrativejudge appoint counsel for indigent defendants raises a number of concerns. Some wouldargue that such appointment power can be abused by allowing the promotion ofpatronage over the goal of effective representation, resulting in the potential appearanceof impropriety and the appointment of less than stellar capital counsel. Indigentrepresentation costs the State of Ohio many millions of dollars a year. With that much atstake, it is imperative that the appointment of representation occur in a highly ethicalmanner.The need for competent representation is strongest in a capital case. An indigentdefendant deserves experienced counsel who have manageable dockets, without concernsthat the appointment of counsel may have been influenced by patronage issues. In lightof Task Force Recommendation 53, any system of appointment should be controlled byspecific objective factors tied to the competence and effectiveness of counsel under auniform process established by the Supreme Court. Recommendation 51 should berejected.X. Recommendation 52 – Trial judge to control appointment of defense experts - exparte hearing allowed… “upon establishing counsel’s compliance with discovery.”Court’s decision is immediately appealable.SummaryThis proposal would promote gamesmanship and delay capital proceedings. First,ex parte hearings are disfavored at law for good reason and their use should not beexpanded to allow defense counsel unfettered unilateral access to the trial court. Second,the ability to take an interlocutory appeal of a ruling about defense experts is nothingmore than a delay tactic by the defense. Delay puts the public at risk because it canweaken prosecution. A defendant’s rights are adequately protected by raising claims ondirect appeal.Public PolicyThere is strong public policy against adopting this proposal. Ex parte hearingsprohibit one side from being heard. This can lead to improper influence by one party.While ex parte hearings are recognized to protect trial strategy, a blanket allowance of ex25parte hearings for any expert issue is overly broad. The Task Force proposal does notrecommend any protective measures. At a minimum, ex parte hearings should be limitedto purely procedural matters and transcribed for future review.The case of State v. Anthony Sowell is a recent example of the problem with thisproposal. Sowell was indicted for killing 11 women in Cleveland, Ohio. His defenseattorneys received permission to have ex parte hearings with the trial court about fundingfor experts. Sowell was convicted and sentenced to death. After his conviction, his trialattorney initiated proceedings in the Eighth District Court of Appeals claiming that heand his experts were not compensated according to the agreement with the trial court.The disputed amount was approximately $45,000. That is in addition to the hundreds ofthousands of dollars already spent on Sowell’s case. Defense counsel claimed that thetrial court enlarged the amount of funding during unrecorded ex parte hearings.Assuming that defense counsel’s allegations are true, there is no evidence of what exactlythe trial court agreed to because the ex parte hearings were not recorded. Defendingagainst this allegation was a balancing act. Because the trial judge still had to rule onSowell’s post-conviction petition, prosecutors could not speak to the judge about thematter. The court administrator, who had little knowledge of the case, had to seekclarification from the judge. All of this could have been avoided if the ex parte hearingswere recorded and limited in scope. The majority proposal to expand the use of ex partehearings should be denied—it is bad policy and bad law.The proposal also seeks an immediate pre-trial appeal of expert issues. This is notthe law, nor should it be. Interlocutory appeals are limited only to very serious issues thathave constitutional implications. If a party can take an interlocutory appeal of a trialissue, that appeal will cause unnecessary delay. Delay weakens prosecutions. In the timeit will take to pursue an interlocutory appeal, witnesses can move or becomeuncooperative and memories can fade. This delay would only serve to benefit thedefendant who would then be likely to file frivolous interlocutory appeals to delay thecase. It is also unlikely that the already over-burdened appellate courts could reasonablyhandle the additional case load and maintain current staffing levels.Public policy does not support this proposal. It will require extra expense totaxpayers and will threaten public safety by delaying prosecution.Law“Ex parte communications generally are disfavored because they conflict with afundamental precept of our system of justice: a fair hearing requires ‘a reasonableopportunity to know the claims of the opposing party and to meet them.’” 38 The use ofex parte hearings were mentioned by the United States Supreme Court in Ake v.Oklahoma, 470 U.S. 68 (1985.) “However, Ake does not require that the [defendant’s]motion be considered ex parte. An ex parte hearing may be required when suchprotection is necessary to protect defense counsel’s strategy, but it is not required in38In re Paradyne Corp., 803 F.2d 604, 612 (11th Cir. 1986), quoting Morgan v. UnitedStates, 304 U.S. 1, 18 (1938).26every case.” 39 Under current law, an ex parte hearing might be required when a standard,open hearing could jeopardize a defendant’s “novel or unique [trial] strategy.” 40An explicit statutory provision providing for the pre-trial appeal of a trial court’sdenial of a defendant’s request for the appointment of an expert witness would “plunge”criminal prosecutions into an untenable “procedural morass.” 41 “Such a procedural rulewould *** grant an automatic long delay to every single person accused of crime whowished to make a similar motion, run out the string, and gamble on the mortality ofwitnesses.” 42 While Earley considered interlocutory appeals of a different topic, itsreasoning equally applies to the majority’s proposal. Current Ohio authority limits pretrial appeals only to critical constitutional issues or rulings that prohibit prosecution.A sweeping statutory rule permitting the appeal of a trial court’s discretionarydenial of a request for the appointment of an expert witness would lead to inescapablepretrial delays in a significant percentage of criminal prosecutions; such appeals wouldinterfere with the State’s ability to preserve both the general integrity of the trial process,as well as the availability and safety of State witnesses. This type of legal conditioncannot be tolerated.ConclusionThe Task Force’s proposal is legally unsupported and contrary to public policy. Itdoes not provide any greater protection for defendants and only seeks to harmprosecution. It should be rejected.XI. Recommendation 36 – Enact legislation to require jury pool list to add “alllicensed drivers who are U.S. citizens.”This proposal requires a jury pool to contain all licensed drivers. Ohio’s statutecurrently requires a jury pool to be comprised of voters and allows the list to besupplemented with licensed drivers. R.C. 2313.06. The American Bar Association hasendorsed the use of multiple source lists to create a master jury list. Ohio’s statutealready complies by allowing multiple sources. The majority’s proposal wants tomandate what is discretionary with the jury commissioners. Their reasons for doing soare unfounded.The proposal is based on the allegation that capital juries are not an accuratecross-section of society. In order to prevail on this claim, the defendant “must show (1)that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) thatthe representation of this group in venires from which juries are selected is not fair andreasonable in relation to the number of such persons in the community; and (3) that theunderrepresentation is due to systematic exclusion of the group in the jury-selection39State v. Brown, 5th Dist. No. 2011-CA-0021, 2011-Ohio-6782.Id., see State v. Peeples, 94 Ohio App.3d 34 (1994).41State v. Earley, 5th Dist. No. CA-565, 1980 WL 354236 (Jan. 28, 1980).42Id.4027process.” Duren v. Missouri, 439 U.S. 357, 364 (1979).Current Ohio law provides adequate safeguards. R.C. 2313.06(B) already allowsa jury pool to be made from multiple source lists including licensed drivers by providingjury commissioners with the ability to draw from licensed-driver lists.Forty-three states and the District of Columbia currently permit the use of two ormore source lists to compile master jury lists. 43 Ohio is in that majority. Federally, onlythirty-three of the ninety-four district courts use supplemental lists. 44 There is no reasonto mandate the use of licensed drivers. Capital juries are already comprised of an equalcross-section of society and there are multiple protections in place to ensure that adefendant’s rights to a fair jury will be protected. The majority proposal seeks to includedisengaged citizens into the most important of civic duties. Rather than diluting the poolof responsible citizens, this legislature should maintain Ohio’s current system whichprotects the rights of defendants and the law abiding residents of this state.XII. Recommendation 17 – Requiring Even More Evidence of Guilt at TrialThe Task Force majority recommends that the General Assembly:ENACT LEGISLATION THAT MAINTAINS THAT A DEATHSENTENCE CANNOT BE CONSIDERED OR IMPOSED UNLESSTHE STATE HAS EITHER: 1) BIOLOGICAL EVIDENCE OR DNAEVIDENCE THAT LINKS THE DEFENDANT TO THE ACT OFMURDER; 2) A VIDEOTAPED, VOLUNTARY INTERROGATIONAND CONFESSION OF THE DEFENDANT TO THE MURDER; OR 3)A VIDEO RECORDING THAT CONCLUSIVELY LINKS THEDEFENDANT TO THE MURDER; OR 4) OTHER LIKE FACTORS ASDETERMINED BY THE GENERAL ASSEMBLY.The majority essentially recommends that the legislature specify and limit theevidence upon which a sentence of death may be sought or imposed, without regard tothe particular facts and circumstances of the case. Common sense and experience readilyreveal that the majority’s recommendation is ill-advised.Implicit in the majority’s recommendation is the assumption that the legislaturecan identify in advance evidence that is so probative of guilt that it can and should berequired in all capital cases. Common sense indicates that the weight of any piece ofevidence depends on the particular facts, as established by the presence or absence ofother pieces of evidence. For example, the presence of the defendant’s DNA on themurder weapon could be highly probative in “linking” the defendant to the “act ofmurdering” the victim, absent evidence of an innocent explanation for the DNA’s43Hannaford-Agor, Systematic Negligence in Jury Operations: Why the Definition ofSystematic Exclusion in Fair Cross Section Claims Must Be Expanded, 59 Drake L. Rev.761, 779-81 (2011).44Id.28presence. But so would the presence of the defendant’s fingerprints on the gun. Underthe majority’s proposed legislation, a sentence of death is permissible in the first instance,prohibited in the second.The same is true for the other kinds of evidence described in the proposedlegislation. The existence of false confessions has been cited by the majority with respectto other recommendations. The reliability or truthfulness of a confession – even onemade on videotape – is measured ultimately by the available corroborating evidence. Avideotaped confession that contradicts other evidence is no more reliable or probativethan a similarly uncorroborated confession made to a “jail house snitch.” Defendantsseldom accommodate the prosecution by committing murder while being videotaped.Generally, whether the defendant’s appearance on the tape actually “links” the defendantto the act of murder again depends on other circumstantial evidence.All things considered, here experience verifies common sense. TimothyMcVeigh, perhaps the most notorious mass murderer in recent history, would not havebeen eligible for a capital sentence under the majority’s proposed criteria.45There are like examples in Ohio. Alton Coleman murdered Marlene Waltersduring the course of a multi-state murder and kidnapping spree. The prosecutionpresented the eyewitness testimony of Mr. Walters, who was also attacked but survived,and compelling circumstantial evidence including expert testimony that Coleman’sfingerprints were found at the scene. 46 Jeffrey Lundgren murdered Dennis and CherylAvery and their three children. Although the state’s evidence consisted primarily of thetestimony of his accomplices, Lundgren admitted at trial that he personally killed theAverys by shooting them one-by-one. 47 William Zuern stabbed to death Officer PhillipPence at the Community Correctional Institute, and was immediately subdued by otherofficers. Zuern was awaiting trial on a murder charge. 48 Coleman, Lundgren and Zuernwere ultimately executed for their crimes, which most assuredly were among the “worstof the worst.” None would have been eligible for a capital sentence punishment underthe majority’s criteria.The majority’s recommendation should be rejected.XIII. Recommendation 47 – Jury Instruction on “Mercy”The Task Force majority (10-8) adopted a proposal recommending that juries mustbe instructed that they always have the option to extend mercy. The intent of this proposalis to allow the capital sentencer to decide to grant mercy to the convicted aggravatedmurderer or terrorist even if the aggravating circumstances outweigh the mitigating factors.A substantial statutory change would need to take place to allow such an instruction.45See United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998).46State v. Coleman, 37 Ohio St.3d 286 (1988).47State v. Lundgren, 76 Ohio St.3d 474 (1995).48State v. Zuern, 32 Ohio St.3d 56 (1987).29Current law prevents the sentencer from giving weight to mere “mercy” as a mitigatingfactor. “[M]ercy is not a mitigating factor.” State v. O’Neal, 87 Ohio St.3d 402, 416(2000). “Permitting a jury to consider mercy, which is not a mitigating factor and thusirrelevant to sentencing, would violate the well-established principle that the death penaltymust not be administered in an arbitrary, capricious or unpredictable manner.” State v.Lorraine, 66 Ohio St.3d 414, 417-418 (1993). “Mercy, like bias, prejudice, and sympathy,is irrelevant to the duty of the jurors.” Id. “The State must not cut off full and fairconsideration of mitigating evidence; but it need not grant the jury the choice to make thesentencing decision according to its own whims or caprice.” Saffle v. Parks, 494 U.S. 484,493 (1990). The United States Supreme Court has not construed its cases “to mean that ajury must be able to dispense mercy on the basis of a sympathetic response to thedefendant.” Johnson v. Texas, 509 U.S. 350, 371-72 (1993); see, also, State v. Davis, 116Ohio St.3d 404, 2008-Ohio-2, ¶ 220; State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048,¶ 190.Under Ohio law, there is no room for a sentencer to extend “mercy” to impose a lifesentence if the sentencer finds that the aggravating circumstances outweigh the mitigatingfactors. In those circumstances, the death sentence is mandatory. As the Ohio SupremeCourt noted in Lorraine, R.C. 2929.03(D)(2) provides that “[i]f the trial jury unanimouslyfinds, by proof beyond a reasonable doubt, that the aggravating circumstances the offenderwas found guilty of committing outweigh the mitigating factors, the trial jury shallrecommend to the court that the sentence of death be imposed on the offender.” (Emphasisadded.) “This statutory requirement eliminates the subjective state of mind the issue ofmercy generally adds to a jury’s deliberation.” Lorraine, 66 Ohio St.3d at 417-18.The Task Force proposal cites a dissent from Justice Scalia in Morgan v. Illinois,504 U.S. 719, 751 (1992). But that dissent does not support the proposition that “mercy”can be a freestanding mitigating factor, let alone a mitigating factor that overrides the resultof the sentencer’s weighing of aggravating circumstances against mitigating factors. JusticeScalia himself does not adopt this view, having concurred in the later decision in Johnsonrejecting a “mercy” requirement.This proposal for a “mercy” instruction is apparently based on the view that thejury/panel must be given freer latitude in making the sentencing decision. But the TaskForce majority ironically rejected another proposal that would have given the sentencergreater freedom. The other proposal would have recommended the removal of the beyondreasonable-doubt weighing process in favor of allowing the jury/panel to review all relevantaggravating and mitigating evidence and then to decide which of the statutory penalties isappropriate. Such a system would have given the sentencer the freedom to consider andweigh “mercy” in the sentencing process. It also would have simplified the sentencingprocess for the sentencer. But the proposal also would have allowed the jury/panel toconsider and weigh a wide array of sentencing information about the defendant and hisoffenses in aggravation in deciding whether to impose death. The Task Force majority (134) rejected the proposal.The juxtaposition of these matters reveals, again, the one-sided nature of the TaskForce approach. On the “mercy” instruction issue, the Task Force is in favor of jury30freedom to consider mercy and even to give it overriding weight; such consideration couldonly benefit the convicted aggravated murderer or terrorist. But when it comes to giving thesentencer greater freedom by dispensing with the cumbersome weighing process and byallowing the jury/panel to hear and consider all matters relevant to sentencing, the TaskForce majority rejects such a proposal. The Task Force majority’s interest in sentencingfreedom is really only a one-way street in favor of the convicted aggravated murderer orconvicted terrorist.XIV. Recommendation 5 – “Proportionality” Review ExpansionUnder current statutory law, the Ohio Supreme Court on direct appeal is tasked with“consider[ing] whether the sentence is excessive or disproportionate to the penalty imposedin similar cases.” R.C. 2929.05(A). The Court’s current practice is to look at other casesinvolving the same aggravating circumstances in which the death penalty has been imposedand affirmed. “The proportionality review required by R.C. 2929.05(A) is satisfied by areview of those cases already decided by the reviewing court in which the death penalty hasbeen imposed.” State v. Steffen, 31 Ohio St.3d 111 (1987).This focus on cases in which the death penalty has been imposed has promptedvehement objections from the defense bar to the supposed narrowness of suchproportionality review, contending that such proportionality review should consider all casesin which the death penalty was charged, including those in which the death penaltyultimately was not imposed. The Court has repeatedly rejected such objections.The Task Force majority (10-7) now urges the adoption of legislation that wouldprospectively expand the proportionality review to include cases in which the death penaltywas charged but not imposed. Again, it is notable that the Task Force majority adopts thispro-defense position, which aligns with the pro-defense bent of other proposals being madeby the Task Force majority.If anything, “proportionality” review should be dispensed with entirely, rather thanexpanded. Such “proportionality” review is not constitutionally required, even in capitalcases.The Constitution is not offended by inconsistency inresults based on the objective circumstances of the crime.Numerous legitimate factors may influence the outcome ofa trial and a defendant’s ultimate sentence, even thoughthey may be irrelevant to his actual guilt. If sufficientevidence to link a suspect to a crime cannot be found, hewill not be charged. The capability of the responsible lawenforcement agency can vary widely. Also, the strength ofthe available evidence remains a variable throughout thecriminal justice process and may influence a prosecutor’sdecision to offer a plea bargain or to go to trial. Witnessavailability, credibility, and memory also influence theresults of prosecutions. Finally, sentencing in state courts31is generally discretionary, so a defendant’s ultimatesentence necessarily will vary according to the judgment ofthe sentencing authority. The foregoing factors necessarilyexist in varying degrees throughout our criminal justicesystem.McCleskey v. Kemp, 481 U.S. 279, 307 n. 28, 317 (1987). Even in capital cases, crosscase proportionality review is not constitutionally required. Pulley v. Harris, 465 U.S. 37(1984). There is not even a requirement that co-defendants in the same case receive thesame sentence. Getsy v. Mitchell, 495 F.3d 295, 305 (6th Cir. 2007) (en banc).Several concerns make it especially problematic to consider life-sentenced casesand other cases in any such “proportionality” review. Cases charged with death-penaltyspecification(s) may not have gone to trial and instead may have resulted in a non-deathsentence as a result of a plea. In those cases, the factual record is not fully developed,and so the Supreme Court would not have access to all of the facts, reasons, andcircumstances why the case ended up with a sentence less than death. In many situations,it would be difficult and likely impossible for the Supreme Court to assess whether thelife-sentenced cases were “on all fours” with the case being considered by the SupremeCourt.Even for cases that went to trial and resulted in a fully-developed factual record, itwould be unproductive in the vast majority of cases for the Court to engage in a detailedreview of the facts and circumstances of other cases. Searching for a case “on all fours”with the case being appealed would be like trying to find a needle in a haystack, asmyriad factual variations can provide reasons to distinguish the outcomes of the twocases. This is particularly true in light of the special “mitigation” principle in the deathpenalty context that requires individual sentencers to consider supposed mitigatingfactors going as far back as the childhood of the killer. When every case devolves intosuch a wide-ranging list of “mitigators” regarding the killer, differences in outcomesprove nothing.A quirk in Ohio law also makes it difficult to truly assess the significance of thedifferent sentencing outcomes. Under Ohio law, the jury must be unanimous torecommend a death sentence. The Ohio Supreme Court has said that a single juror canprevent the jury from recommending death and that jurors can receive instructions to thateffect. When the jury’s vote in a particular case can be 11-1 in favor of death, but thecase still defaults to a life sentence as a matter of law, it makes no sense to consider thatlife sentence in any proportionality review as weighing toward a life sentence.Complicating matters even further is that this kind of hung-jury outcome is oftenhidden because the court’s instructions often inform the jurors that they must default to alife sentence if they reach an impasse on death. When the jury returns to the courtroom,they announce a “life” sentence, but they actually can be a hung jury that could have beenvoting in favor of a death sentence by a substantial majority. Given that the deliberationsof the jury can hide what truly prompted the jury to “reject” death, and given that just asingle outlier juror can veto the death penalty in a given case, it would be a substantial32waste of time to be looking at cases resulting in non-death sentences.Finally, even in cases in which the other life-sentenced case is “on all fours” inevery material respect, there is still the question of why the life-sentence decision in theother case should be considered as any more “valid” than the death-sentence decision thatwas made in the case being appealed. The other sentencer may have merely been alenient sentencer reluctant to impose a death sentence. A single sentencer should notcontrol all sentencing outcomes in the state.But this is the ultimate goal of this proposed pro-defense expansion ofproportionality review. The goal is to turn “proportionality” review into a one-wayratchet that would bar death in one case merely because a more-lenient sentencer inanother case chose to impose a life sentence. Nothing in law or logic should require this“race to the bottom” towards leniency in death-penalty sentencing.XV. Recommendation 20 – Enact legislation to allow defendant to withdraw jurywaivers if either phase is reversed.SummaryThis proposal demands that a defendant have the option of revoking a jury waiverif either the guilt phase or the penalty phase of the trial is overturned on appellate review.The Ohio Legislature included explicit language in R.C. 2929.03 and R.C. 2929.06reiterating the binding power of a defendant’s jury waiver even in cases where areviewing court finds error in the penalty phase of the defendant’s trial. Ohio courts haveconsistently recognized this explicit provision against “hybrid” trials. The Ohio SupremeCourt and a number of reviewing Federal courts have dismissed both Due Process andEqual Protection violation claims as they relate to this portion of Ohio’s capital scheme.The majority proposal is aimed at giving cold-blooded killers more rights than theircounterparts who did not previously waive a jury.Public PolicyThere is strong public policy for rejecting the majority’s proposal. Capitalappellate litigation takes decades and any reversal is likely to occur years after the trial.The majority proposal wants to allow a defendant, who previously waived his right to ajury, to withdraw that waiver years later. The proposal essentially seeks to codifydefense gamesmanship. The passage of time may weaken the prosecution’s case whilegiving the defendant time to construct a different defense.Jury waivers are not entered into lightly. A defendant, with the benefit ofcounsel, considers how a jury would respond to the evidence and any possible defenses.The trial court must ensure that the defendant knowingly, intelligently, and voluntarilywaives his right to a jury. Prior to the amendments to R.C. 2929.06, a defendant whowaived his right to a jury trial remained capitally eligible if the penalty phase wasreversed but a defendant who exercised his right to a jury did not. 49 The statute was49State v. Penix, 32 Ohio St.3d 369 (1987); State v. Davis, 38 Ohio St.3d 361 (1988).33amended to eliminate the disparity.The majority proposal would allow a capital defendant to test the waters. If thedefendant loses with a panel of judges, he can try again with a jury. Impaneling a newjury is unnecessary, expensive, and time consuming. The defendant was already aware ofthe evidence and potential defenses at the time of trial. The amendments to R.C. 2929.06were meant to bring equality. The majority’s proposal seeks to end that by giving agreater benefit to those defendants who originally waived their right to a jury.While there are relatively few penalty-phase reversals, the majority proposalwould still have a large impact on the ability to obtain a capital sentence against some ofOhio’s most dangerous criminals. One example is the case of State v. Kelly Foust fromCuyahoga County. Kelly Foust broke into the home of Damaris Coreano, his exgirlfriend’s friend. He bludgeoned Damaris’s father to death with a hammer andrepeatedly sexually assaulted Damaris. Foust tied Damaris up and left her in a bathtub todie while he lit the house on fire. He did all of this after committing prior sexual assaults.Foust is the type of person that the majority proposal seeks to protect. Foust, and those ina similar position, do not deserve any greater protection than any other capital defendantand certainly should not have the ability to weaken the chance of successful capitalprosecution.LawIn drafting R.C. 2929.03 and R.C. 2929.06, the Ohio Legislature included explicitlanguage reiterating the binding power of a defendant’s jury waiver as to both the guiltand sentencing phases of a capital trial. This proposal demands that a defendant have thepower to withdraw their jury waiver if either phase of their trial is reversed on appellatereview. This protection already exists where there is reversible error at the guilt phase.Permitting defendants to withdraw a jury waiver in cases where a legitimate finding ofguilt remains and where errors are confined to the penalty phase proceedings only flies inthe face of explicit statutory language and established judicial precedent.R.C. 2929.03(C)(2)(b) provides that once a defendant waives his right to a jurytrial, that waiver also applies to the penalty phase. A defendant may not withdraw hisjury waiver following the commencement of trial, nor may a defendant withdraw hiswaiver between the guilt and penalty phases of a capital trial. 50 Ohio’s capitalproceedings, therefore, do not permit a three-judge panel to hear the guilt phase, but thenempanel a jury to determine the sentence. R.C. 2929.06(B) discusses applicableprocedures if only the penalty phase is reversed. It states in relevant part that “[i]f theoffender was tried by a jury, the trial court shall impanel a new jury for the hearing. Ifthe offender was tried by a panel of three judges, that panel or, if necessary, a new panelof three judges shall conduct the hearing.” Ohio’s statutory scheme explicitly rejects themajority’s proposal. As previously discussed, this was done in order to promote theequality between those defendants who exercised their right to a jury and those who50See State v. Davis, 12th Dist. No. CA2009-10-263, 2011-Ohio-787, ¶34.34waived that right. 51The Ohio Supreme Court has recognized that neither the Revised Code nor theCriminal Rules permit “an accused charged with aggravated murder to waive a jury,request that three judges determine guilt upon a plea of guilty, and then have a jurydecide the penalty.” 52 That Court has also previously “issued a writ of prohibitionagainst a trial judge who had created ‘a hybrid procedure – a jury sentencing hearing tomake certain findings upon which [the trial judge] would base his sentencingdecision.’” 53 In 2012, the Ohio Supreme Court found that R.C. 2929.06 did not violatethe Retroactivity Clause of Ohio’s Constitution, the Ex Post Facto Clause, or the DoubleJeopardy Clause. 54 R.C. 2929.06(B) applies only to situations “where an aggravatedmurder conviction with a death specification has been affirmed, but the death sentencehas been set aside for legal error, when the error infects and thus invalidates thesentencing phase of the trial.” The White Court classified R.C. 2929.06 as remedial.Courts have also rejected arguments claiming that Ohio’s capital scheme violates theEqual Protection clause. “When a law seeks to regulate an individual’s fundamentalrights or distinguishes between individuals on the basis of certain suspect characteristics,the statute is subject to strict scrutiny under the Equal Protection Clause.” 55 However,neither prisoners nor capital defendants represent a “suspect class.” 56 Additionally, theSixth Circuit found that a “sound, rational basis” exists “for the different treatment ofdefendants resentenced after jury trials and those resentenced after trials before threejudge panels.” 57ConclusionThe current statutory framework promotes equality and has been deemedconstitutional. Adopting the majority’s proposal would bring unnecessary expense andlitigation while promoting gamesmanship by the defense. There is no reason that a priorvalid jury waiver should be invalidated when only a sentence is impacted.XVI. Recommendation 27 – Post-Conviction Review – Unlimited BriefingThe Task Force majority recommends that:51Margery Koosed, On Seeking Controlling Law and Re-seeking Death Under Section2929.06 of the Ohio Revised Code, 46 Clev. St. L. Rev. 261 (1998).52State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, ¶ 123.53Id. at ¶ 125; see State ex rel. Mason v. Griffin, 104 Ohio St.3d 279, 2004-Ohio-6384.54State v. White, 132 Ohio St.3d 344, 972 N.E.2d 534.55Davis v. Coyle, supra, at 779, citing Mass. Bd. of Retirement v. Murgia, 427 U.S. 307,312 (1976).56See Davis, supra; Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir. 2000); Tigner v.Cockrell, 264 F.3d 521, 526 (5th Cir.2001); Pitsonbarger v. Gramley, 141 F.3d 728, 739(7th Cir.1998).57Coyle, supra, at 780.35THERE SHALL BE NO PAGE LIMITS IN DEATH PENALTY CASESIN EITHER THE PETITION FILED WITH THE COMMON PLEASCOURT OR ON APPEALS FROM THE DENIAL OF SUCHPETITIONS.The majority recommends the removal of page limitations in capital cases onpetitions for post-conviction relief and on briefs in subsequent appeals. The majority’srecommendation is ill-advised and should be rejected.Rule 35(A) of the Ohio Rules of Criminal Procedure provides that each groundfor relief in a post-conviction petition shall not exceed three pages in length. However,the trial court may extend the page limit, request further briefing on any ground for reliefpresented, or direct the petitioner to file a supplemental petition. Appellate Rule 19(A)provides a 35-page limit on initial and answering briefs, and a 15-page limit on briefs inreply, exclusive of the table of contents, tables of cases, statutes and other authoritiescited, and appendices. The limits may be extended with leave of court.The Supreme Court of Ohio has recognized that courts have inherent power tosupervise the proceedings before them to ensure the orderly and efficient exercise ofjurisdiction, and that page limitations are a valid exercise of that power. “Even in capitalcases, we have upheld page limitations, finding that they force counsel to winnow outweaker arguments and focus on key issues.” 58 As the Supreme Court of Californiarecently noted in upholding its limitations, page limits in petitions for post-convictionrelief are not uncommon. 59There is no evidence that the current limitations prevent capitally-sentencedprisoners from obtaining full and fair adjudications of their post-conviction claims forrelief. There is no reported case in Ohio in which it has been found that a trial orappellate court abused its discretion in setting or enforcing page limitations on petitionsor appellate briefs. Indeed, as noted previously, the courts have recognized that suchlimitations promote effective advocacy by focusing attention on the law and facts inissue.By the same token, the potential harm posed by the majority’s “no limits rule” isreal. It should go without saying that death row inmates have an incentive to delay theassertion and adjudication of their claims that is not shared by other prisoners, therebyfrustrating the state’s legitimate interest in enforcing capital punishment. Lawyersrepresenting capitally-sentenced prisoners are exhorted to make every conceivableargument, frivolous or not. 60 These exhortations are contrary to long-established normsof ethical advocacy. “Neither paid nor appointed counsel may . . . consume the time and58See Ziegler v. Wendel Poultry Services, Inc., 67 Ohio St.3d 10 (1993), citing State v.Davis, 62 Ohio St.3d 326, 352 (1991); State v. Bonnell, 61 Ohio St.3d 179, 186 (1991)(Succinctness of argument is a beneficial trait in the art of appellate advocacy.”).59In re Reno, 55 Cal.4th 428, 517 (2012).60Freedman, The Professional Obligation to Raise Frivolous Issues in Death PenaltyCases, 31 Hofstra L.Rev. 1167 (2003).36the energies of the court or the opposing party by advancing frivolous arguments.” 61Yet the potential harm is not exclusive to the state, but could also extend toprisoners who have colorable grounds for relief. As recently observed by the SupremeCourt of California, “Some death row inmates with meritorious legal claims maylanguish in prison for years waiting for this court’s review while we evaluate petitionsraising dozens or even hundreds of frivolous and untimely claims. We are not the onlystate court of last resort concerned that abusive exhaustion petitions threaten the court’sability to function.” 62In short, the majority’s recommendation conflicts with long established rules ofpractice, which permit the courts to ensure the orderly and efficient exercise ofjurisdiction, while promoting the interests of justice. At the same time, the majorityignores the grave harm to justice posed by prisoners who may be expected to abuse the“no limits” rule by pleading hundreds of repetitive and obviously meritless claims.XVII. Recommendations 11 & 12 – Post-Conviction Review – Standards for TrialCounsel EffectivenessThe Task Force majority recommends that Ohio:(1.)ADOPT THE 2003 AMERICAN BAR ASSOCIATIONGUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OFDEFENSE COUNSEL IN DEATH PENALTY CASES.(2.)ADOPT THE SUPPLEMENTARY GUIDELINES FOR THEMITIGATION FUNCTION OF DEFENSE TEAMS IN DEATHPENALTY CASES.The majority recommends that the Supreme Court of Ohio “adopt” guidelines setforth by the American Bar Association (ABA) for defense counsel in capital cases. Themajority disavows any intent to alter the constitutional standard for evaluating theperformance of counsel established by the Supreme Court of the United States inStrickland v. Washington, 466 U.S. 668 (1984). Nevertheless, the majority describes theABA guidelines as the standards for professional performance applied by the SupremeCourt of the United States and the lower federal courts. During Task Force discussions, amember of the defense services committee argued that adopting the guidelines wasconsistent with Strickland’s two-part test, which requires a showing of professionaldeficiency and actual prejudice, because courts remained free to determine that a failureto comply with the guidelines did not prejudice the defendant.Contrary to the majority’s assertion, in calling for “adoption” of the ABAguidelines as performance standards, the majority invites Ohio to elevate the guidelinesto a status which the Supreme Court of the United States and the Supreme Court of Ohiohave explicitly refused to endorse. Stressing that the ABA’s standards are “only guides,”6162McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 435-436 (1988).In re Reno at 515.37the Supreme Court of the United States, in an Ohio capital case, pointedly “express[ed]no views” on whether the 2003 ABA Guidelines actually reflect “prevailing norms” or“standard practice,” or, whether the guidelines were not so detailed that they would“interfere with the constitutionally protected independence of counsel and restrict thewide latitude counsel must have in making tactical decisions.” 63 In concurring, JusticeAlito emphasized his understanding that the Court’s opinion “in no way suggests” thatthe ABA guidelines “have special relevance in determining whether an attorney’sperformance meets the standard required by the Sixth Amendment,” and that he saw noreason why the ABA guidelines “should be given a privileged position” in determiningthe nature of the work that a defense counsel must do in a capital case. 64In State v. Maxwell, 2014 WL 1063461, the Supreme Court of Ohio rejected thedefendant’s argument that trial counsel’s performance must be judged by the standardsset forth in the ABA Guidelines.The 2003 Guidelines and the Supplementary Guidelines for the MitigationFunction in fact set forth extensive requirements which apply to all capital cases,regardless of the particular facts and circumstances. For example, in addition to adefense team of “at least” two lawyers, a fact investigator, and a mitigation specialist, theguidelines also require, in “most cases,” additional lawyers with specialized knowledge,as well as a psychologist or mental health expert, and “almost always,” “additional expertassistance.” 65 “[R]easonably diligent counsel may draw a line when they have goodreason to think further investigation would be a waste.” 66 The guidelines’ all-inclusiveapproach leaves little room for defense counsel to exercise his or her professionaljudgment in determining the best use of time and resources, given the limits within whichall criminal trials must be conducted.If accepted, the guidelines’ will unnecessarily add to the already substantial costsof trial litigation. For example, in a recent capital case, in addition to attorney fees, thetrial court approved $66,488.10 for forensic investigation; $5,000 for a forensic crimescene expert; $8,027.15 for a mitigation investigator; $5,830.42 for sentencing andmitigation experts; $7,060.69 for a testifying expert; $3,155.77 for a “military recordsexpert”; $15,246.57 for a mental health expert; $1,906.50 for other investigator fees; and$8,400 for another testifying expert. 67While inconsistent with the Strickland standard 68 , the guidelines’ expansive and63Bobby v. Van Hook, 130 S. Ct. 13, 17 (2009), quoting Strickland v. Washington, supraat 688, 689, and Wiggins v. Smith, 539 U.S. 510, 524 (2003).64Bobby v. Van Hook, supra, 130 S. Ct. at 20 (Alito, J. concurring).65Commentary to Guideline 10.4-The Defense Team at *1004.66Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 2463 (2005).67See Electronic Docket for State of Ohio v. Anthony Sowell, Case No. CR-09-530885-A.68The guidelines’ expansive requirements also conflict with other established law. SeeLundgren v. Mitchell, 440 F.3d 754, 773, n.6 (6th Cir. 2006) (“The dissent’s conclusionthat counsel’s investigation was unreasonable contradicts the Supreme Court’s holdingthat, even in capital cases, a defendant is entitled to only one qualified mental health38detailed requirements also portend increased and even more protracted post-triallitigation. For example, post-conviction counsel may be expected to claim that trialcounsel’s alleged “failure” to obtain “additional” lawyers and experts violated theguidelines and constituted deficient performance, regardless of the specific theory of thedefense. In fact, the guidelines themselves require post-conviction counsel to undertakesuch “Monday-morning quarterbacking.” “Because an appreciable portion of the task ofpost-conviction counsel is to change the overall picture of the case, Subsection E(3)requires that they keep under continuing review the desirability of amending the defensetheory of the case, whether one has been formulated by prior counsel in accordance withGuideline 10.10.1 or not.” 69Finally, the problem of increased post-conviction litigation is compounded by themajority’s failure to recommend a mechanism through which trial courts can enforce theguidelines’ expansive requirements. This failure is nothing less than a guarantee that ifadopted as the standards to which reviewing courts must review trial counsel’sperformance, the guidelines will serve primarily as a generator of post-convictionlitigation, rather than a spur to effective performance in capital cases.XVIII. Recommendation 28 – Post-Conviction Petitions – Requiring Depositionsand SubpoenasThe Task Force majority recommends that Ohio:AMEND R.C. 2953.21, AS ATTACHED IN APPENDIX C, TOPROVIDE FOR DEPOSITIONS AND SUBPOENAS DURINGDISCOVERY IN POST-CONVICTION.The majority recommends statutory amendments which expressly authorizeconvicted prisoners to conduct discovery in support of petitions for post-conviction relief.The majority’s proposals are inconsistent with the rules which permit limited discovery infederal habeas corpus and post-conviction in other states; and will precipitate costly andunwarranted attempts to retry the facts underlying lawful convictions and sentences.At the outset, the proposed amendments entitle a prisoner to conduct discovery“[a]t any time prior to or in conjunction with the filing or litigation of a petition.” Infederal habeas corpus, a district court has discretion to grant discovery only upon a factspecific showing of good cause. 70 A prisoner must outline factual allegations in apetition before the district court will be able to determine the propriety of discovery.expert at the expense of the state, even if the conclusions of that expert fail to favor thedefense.”), citing Ake v. Oklahoma, 470 U.S. 68, 71, 83 (1985).69Commentary to Guideline 10.15.1-Duties of Post-Conviction Counsel at *1085.70Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001), citing Bracy v. Gramley, 520U.S. 899 (1997).39Accordingly, pre-petition discovery in federal habeas corpus is impermissible. 71 Theproposed entitlement to pre-petition discovery is therefore in stark conflict with thehabeas corpus rule.In addition, the proposed language fails to require “good cause,” as defined by thefederal and state courts. The proposed amendments will entitle the prisoner to conductdiscovery to show “that there is a reasonable probability of a different verdict.” Contraryto the implication of the majority’s proposal, the trial is “the main event,” and not a tryout on the road to a post-conviction hearing. 72 The federal and state courts agree that“good cause” properly focuses on the specific claims of constitutional error alleged bythe prisoner. 73 Conspicuously absent from the proposed amendments is the standard of“good cause” applied by the federal and state courts.There is no doubt that attorneys representing capitally-sentenced prisoners willuse the majority’s proposed amendments to conduct costly and unwarranted retrials of theprisoners’ cases. The American Bar Association’s Guidelines require post-convictioncounsel to “undertake a thorough investigation into the facts surrounding all phases of thecase,” to include investigation of the testimony and background of “most, if not all, of thecritical witnesses for the prosecution,” as well as all of the non-testimonial evidence.Counsel must conduct a similarly comprehensive review of the punishment phase “toverify or undermine the accuracy of all evidence presented by the prosecution.” Theguidelines do not limit required investigations to the discovery of legal error or violationsof the prisoners’ constitutional rights. 74In short, the statutory language proposed by the majority conflicts with thegoverning standards in federal habeas corpus and other states, and will transform Ohio’scapital post-conviction proceedings into a virtual second trial, an approach which forgood reasons should be rejected.XIX. Recommendation 43(G) – Clemency Review – Even More Expert FundingThe Task Force majority recommends that Ohio:ENACT LEGISLATION OR ADMINISTRATIVE REGULATIONSWHICH IDENTIFY A FUNDING MECHANISM, SUCH AS ACAPITAL LITIGATION FUND, FOR THE INMATE’S MENTALHEALTH EXPERT OR STATE EXPERT SO THAT AN EXPERT CAN71Calderon v. United States Dist. Court, 98 F.3d 1102, 1106-07 (9th Cir.1996) (districtcourt clearly erred in granting petitioner’s discovery request before he presented specificallegations in the form of a verified petition).72Ex Parte Brown, 205 S.W. 3d 538, 545 (Tex. 2000), citing Herrera v. Collins, 506 U.S.390, 409–11 (1993).73Harris v. Nelson, 394 U.S. 286, 295 (1969); Canion v. Cole, 210 Ariz. 598, 601 (2005)(“Because no petition has been filed, Canion has neither established good cause fordiscovery nor made a colorable claim that he is entitled to post-conviction relief.”).742003 ABA Guidelines, Commentary to Guideline 1-1.40BE HIRED IN A TIMELY MANNER FOR THE PAROLE BOARDHEARING.The majority essentially recommends that funds be appropriated to provide for thecondemned inmate’s evaluation by mental health experts prior to the clemency hearingconducted by the parole board. In virtually every capital case, the condemned prisonerhas undergone evaluations of his or her mental health prior to trial or during postconviction proceedings. Ohio also has procedures for evaluation of the prisoner’s mentalcompetency to be executed. The board has access to information produced as a result ofall such evaluations and inquiries, as well as information concerning the prisoner’scurrent mental condition that is maintained at the prisoner’s place of incarceration. Noevidence was presented to the Task Force that additional evaluations are necessary. Themajority’s recommendation therefore should be rejected.It is long been the rule that when a defendant demonstrates to the trial judge thathis or her sanity at the time of the offense is to be a significant factor at trial, the Statemust, at a minimum, assure the defendant access to a competent psychiatrist who willconduct an appropriate examination and assist in evaluation, preparation, andpresentation of the defense. 75 Ohio law provides for a psychological evaluation of acapitally-charged defendant upon the defendant’s request. 76 Aside from the statutorilyguaranteed evaluation, mental health experts regularly are provided to assist the defensein capital cases, for the purposes of trial and sentencing. The testimony or reports ofmental health experts are regularly offered in the trial and mitigation phases. 77Ohio law also provides for the mental evaluation of a condemned prisoner in theevent there is probable cause to believe that the prisoner does not have the mentalcapacity to understand the nature of the death penalty and why it was imposed. 78 Theevaluation is conducted by mental health experts appointed by the trial court. The resultsof the evaluation, and the findings of the trial court, are a matter of public record. Theprisoner is represented by counsel. 79The clemency board is routinely provided the results of mental evaluations of theprisoner conducted in the course of these judicial proceedings, including the reports and75Ake v. Oklahoma, 470 U.S. 68, 83 (1985); State v. Vrabel, 99 Ohio St.3d 184, 190(2003) (noting that at least six mental health professionals examined the defendant priorto trial).76O.R.C. §2929.03(D)(1).77See State v. Mundt, 115 Ohio St.3d 22 (2007); State v. Ketterer, 111 Ohio St.3d 70(2006); State v. Ahmed, 103 Ohio St.3d 27 (2004); State v. Hughbanks, 99 Ohio St.3d365 (2003); State v. LaMar, 95 Ohio St.3d 181 (2002); State v. Hill, 75 Ohio St.3d 195(1996); State v. Murphy, 65 Ohio St.3d 554 (1992); State v. Smith, 61 Ohio St.3d 284(1991); State v. Powell, 49 Ohio St.3d 255 (1990); State v. Seiber, 56 Ohio St.3d 4(1990); State v. Steffen, 31 Ohio St.3d 111 (1987); State v. Maurer, 15 Ohio St.3d 239(1984).78O.R.C. § 2949.28.79See State v. Awkal, 974 N.E.2d 200 (Ohio 2102).41testimony of mental health experts. Although counsel for the prisoner may provideadditional information, it is unlikely that a condemned prisoner will suffer from a seriousmental illness that has been previously undetected. The board also has access toinformation concerning the prisoner’s current mental condition that is maintained at theprisoner’s place of incarceration. All prisoners have a constitutional right to adequatemental health care, and Ohio has established procedures for the evaluation of prisonersconsistent with that right.Given all of the above, there are no reasons to believe that mental healthevaluations are routinely necessary prior to the board’s review of a condemned prisoner’sapplication for executive clemency. No evidence was presented to the Task Force thatthe board lacks sufficient information to assess whether the prisoner suffers from amental illness that warrants a recommendation in favor of clemency. By the same token,requiring special evaluations routinely in anticipation of a clemency hearing – which therecommended “capital litigation fund” suggests is appropriate – will result inunwarranted additional costs.Therefore, the majority’s recommendation should be rejected.XX. Recommendation 41 – DelaysThe Task Force adopted a proposal (12-6) indicating that “[t]he Task Forceshould pass a resolution urging all parties involved to work on procedures to remove anyimpediments to a fair and timely resolution of death penalty cases in the Ohio courts.” Astronger recommendation would have been appropriate on the issue of delay.The need to limit undue delays in Ohio courts has become an important matter.One example of such delays is the Ohio Supreme Court’s failure to give priority to thedirect review of death-penalty cases over all other cases as required by Ohio law underR.C. 2929.05(B). In recent years, the delays between the end of briefing and the holdingof oral arguments have routinely lasted two years and longer. See, e.g., State v. Short,Sup.Ct.No. 06-1366 (39 months); State v. Hunter, Sup.Ct.No. 07-2021 (34 months); Statev. Powell, Sup.Ct.No. 07-2027 (38 months); State v. Wesson, Sup.Ct.No. 09-739 (33months); State v. Neyland, Sup.Ct.No. (40 months); State v. Kirkland, Sup.Ct.No. 10-854(24 months); State v. Mammone, Sup.Ct.No. 10-576 (25 months).In some cases, the defense attorneys themselves have noted the extensive delaysand filed motions to allow interim billing during the appeals because they cannot waituntil the end of the appeals to file for attorney-fee reimbursement. See, e.g., State v.Thomas, Sup.Ct.No. 12-2026 – 1-8-13 Motion for Interim Billing (“It is not unusual forthe direct appeal process to take 3-5 years to complete.”; emphasis added); State v. Dean,Sup.Ct.No. 11-2005, 2-17-12 Motion for Extraordinary Fees (“There is traditionally asignificant lapse of time between briefing and oral argument * * *.”; emphasis added);State v. Sowell, Sup.Ct.No. 11-1921, 5-10-13 Motion for Extraordinary Fees (“deathpenalty cases are rarely resolved by this Court until several years after briefing iscompleted”; “Counsel anticipates that it will be several years yet before oral argumentand at least a period of several months after that before this Court issues an opinion.”;42emphasis added).These kinds of delays after the briefing is completed far exceed what is needed toreview a capital case. The Court’s Rules of Practice provide that the parties’ briefing (withextensions) must be completed within approximately 12.5 months of the trial-court recordbeing filed. S.Ct.Prac.R. 11.05(B). Given the head start provided by such briefing, andgiven the narrowing of issues provided by such briefing, the Ohio Supreme Court’s reviewshould take much less time. Every death-penalty case in which briefing has been completedshould be the first priority in terms of the oral arguments next to be scheduled and in termsof cases to be disposed of. But the Supreme Court is not giving these capital cases suchpriority.Another source of delay occurs in the setting of execution dates. After the defendanthas finished his state-court and federal-court reviews and the death sentence has been upheldby all such courts, the prosecution will file a motion to set execution date in the OhioSupreme Court. Given that all court reviews are completed, the Court should be settingexecution dates in a prompt manner that should occur within six months or less. Butsignificant delays are occurring and have occurred. It can take the Court several monthsbefore the Court even rules on the motion to set execution date. See State v. Van Hook,Sup.Ct.No. 87-1159 (unopposed motion to set execution date; six-month delay before beinggranted); State v. Landrum, Sup.Ct. No. 89-454 (motion pending 16 months before ruling);State v. Jackson, Sup.Ct.No. 98-726 (motion pending 7 months). And, even then, the Courtis setting dates that are usually over two years later. Van Hook (setting execution over 24months later); Jackson (26 months).Such delays are unnecessary. The motions themselves are sometimes unopposedand, even when opposed, could be ruled on in a matter of a few weeks, not months uponmonths.Equally so, there is no legitimate reason to be setting execution dates out over twoyears later. Any review by the parole board and/or the Governor can or should be able tooccur within six months. Such death-sentence cases have exhausted judicial review andshould receive priority over all other cases that would be reviewed by these officials. Theseofficials, just as much as the Ohio Supreme Court, should give priority to such deathsentenced cases and devote the necessary resources to carrying out their duties regardingsuch cases in an expeditious manner. Setting execution dates over two years out simplydoes not reflect the high priority that such cases should receive by Ohio officials in theExecutive and Judicial Branches.Setting execution dates within six months would not be “premature” or “rushed.”The cases have invariably been delayed over many, many years while judicial review wascarried out in the glacial pace as is currently occurring on the state and federal levels. Itcannot be claimed that even more delay is needed to review a case that has already beenreviewed for several years. And, of course, the victims never received such dispensations ofdelay from the defendant who murdered them. Delays of years upon years after the killingis long enough.43Whatever one thinks of the death penalty, it is the law of the land, and these deathsentences have been upheld after the substantial judicial review that such cases entail. Amotion to set execution date should be routine in most cases, and, even if somewhatcomplicated, should not take months and months to decide. Setting the execution date twoyears or more into the future merely compounds delay upon delay.XXI. Hamstrung Sentencers under Current Law; Improvements Rejected by TaskForceJuries and panels are hamstrung under current law, as the system is already tiltedheavily in favor of the defendant. Under current law, the sentencer’s discretion isnarrowly channeled into a weighing process that only allows the sentencer to weigh onthe “death” side of the equation the specified aggravating circumstance(s). For example,they are not allowed to weigh in aggravation any evidence of victim impact. They arenot allowed to hear or weigh evidence of the defendant’s violent criminal character orviolent criminal past.In these respects, a penalty-phase jury/panel is unique in Ohio law, as all othersentencers in Ohio are allowed to consider such matters. Courts have traditionally andconstitutionally considered a defendant’s past criminal behavior, even when that behaviorhas not resulted in a conviction. United States v. Watts, 519 U.S. 148, 152 (1997);Nichols v. United States, 511 U.S. 738, 747 (1994). The traditional rule is that thesentencer should have “the fullest information possible concerning the defendant’s lifeand characteristics.” Watts, 519 U.S. at 151, quoting Williams v. New York, 337 U.S.241, 247 (1949). As recognized by the Ohio Supreme Court, “the function of thesentencing court is to acquire a thorough grasp of the character and history of thedefendant before it. * * * Few things can be so relevant as other criminal activity of thedefendant * * *.” State v. Burton, 52 Ohio St.2d 21, 23 (1977). However, under currentlaw, death-penalty sentencers are often deprived of that full understanding of thedefendant.Likewise, in other kinds of homicide cases, sentencers often hear from the familymembers about the impact that the victim’s killing has had on them. However, undercurrent law, death-penalty sentencers are not allowed to receive and weigh such victimimpact information in deciding whether to impose a death sentence.The Task Force majority rejected proposals to allow admission at the penaltyphase of victim-impact evidence, evidence of the defendant’s violent criminal record, andevidence of other acts that would constitute offenses of violence.While the Task Force adopted a recommendation that the legislature should“study how to best support families of murder/homicide victims in the short and longterm,” a majority of the Task Force rejected (10-7) a proposal that would have given thevictims an actual voice in capital sentencing by allowing the sentencer to weigh inaggravation the impact of the aggravated murder on family members of the murdervictim(s).44The Task Force majority also rejected (9-8) a proposal to allow the sentencer tohear evidence of the defendant’s adult criminal convictions including offenses ofviolence and to weigh such evidence in aggravation supporting a death sentence.The Task Force majority also rejected a proposal (11-5) that would allow thesentencer to hear evidence of other violent criminal acts committed by the defendant andto weigh such evidence in aggravation supporting a death sentence.These proposals would not have expanded the list of statutory aggravatingcircumstances that are to be listed in the indictment and proven in the guilt phase of thetrial so as to make the defendant eligible for the death penalty. But such evidence wouldhave been available for the jury/panel to weigh in favor of aggravation at the penaltyphase and in favor of imposing death.The most important of these proposals was the proposal to give victims a say inthe penalty phase. Current law precludes the jury/panel from weighing victim-impactevidence in aggravation in the penalty phase because the statute simply does not providefor it. Victim-impact evidence is not currently an approved “aggravating circumstance”to be weighed on the aggravation side. This inability to give aggravating weight tovictim-impact evidence is a major flaw in the death-penalty scheme that should becorrected.The admission of victim-impact evidence on the side of aggravation isconstitutional. Once the defendant is found to be eligible for the death penalty underdefined criteria, the jury/panel in the penalty phase can engage in a free-wheelingassessment of a broad range of factors in deciding whether to impose the death penalty.As stated in Tuilaepa v. California, 512 U.S. 967, 979-80 (1994), “Once the jury findsthat the defendant falls within the legislatively defined category of persons eligible forthe death penalty, * * * the jury then is free to consider a myriad of factors to determinewhether death is the appropriate punishment.” (quoting another case). “[T]he sentencermay be given ‘unbridled discretion in determining whether the death penalty should beimposed after it has found that the defendant is a member of the class made eligible forthat penalty.’” (quoting another case).Current law unduly restricts the jury/panel’s ability to consider evidence it shouldbe allowed to consider. The Task Force majority unfortunately rejected proposals thatwould have expanded the information presented to the jury/panel and would have freedthe jury/panel to engage in the kind of free-wheeling consideration of evidence that isconstitutionally allowed.XXII. ABA “Team”Appendix A to the majority report is taken up with a discussion of what the ABA“Ohio Death Penalty Assessment Report” of 2007 recommended. It must be emphasizedthat these are not the recommendations of the present Task Force. The recommendations ofthe Task Force are specifically set forth as “Recommendation __” in the main body of themajority report.45Moreover, the bias of the ABA project that generated the 2007 report should giveanyone considerable pause before relying on it. As the majority report acknowledges in itsintroduction, the ABA has endorsed a death-penalty moratorium, and it organized its “DeathPenalty Moratorium Implementation Project” with the goal of encouraging lawyers and barassociations to press for moratoriums and with the goal of encouraging state governmentleaders to establish moratoriums. The Project in turn decided to conduct examinations ofindividual States’ death-penalty systems, using as a guide a set of protocols given the onesided title, “Death without Justice: A Guide * * *.” What resulted was the “Ohio DeathPenalty Assessment Report” in 2007. The majority report here refers to the 2007recommendations as the product of the “ABA Ohio Assessment Team.”The ABA and its associated “Project” and “Team” are plainly lobbying to stop thedeath penalty, a goal and topic which is specifically beyond the purview of this Task Force.There is much to disagree with in the 2007 Report by the ABA “Team.” But, given that thefocus here should be on the recommendations made by the Task Force, little would beserved by a detailed discussion of the 2007 report.XXIII. Identification ProceduresAppendix A to the majority report discusses identification procedures in Ohio butmisstates the law in the process. Ohio law (R.C. 2933.83) does not require the use of a“folder system.” Such a system is just one of the systems police may use for photo lineupidentifications. State v. Fields, 8th Dist. No. 99750, 2014-Ohio-301, ¶ 11.Appendix A also incorrectly maintains that “nothing in the law prohibits the courtfrom conducting a pre-trial reliability hearing with the use of expert testimony on theidentification issue.” Absent police misconduct in using an unduly-suggestiveidentification procedure, there is no bar to the admission of eyewitness identificationtestimony, and any question surrounding the credibility or suggestiveness of aneyewitness identification “goes to weight and reliability of the testimony rather thanadmissibility.” State v. Brown, 38 Ohio St.3d 305, 310-11 (1988). “[I]n the absence ofany action taken by the state, there is no basis to exclude an in-court identification.”State v. Smith, 8th Dist. No. 98280, 2013-Ohio-576, ¶ 39. “Issues of credibility are forthe jury to resolve, not the trial judge.” State v. Lininger, 6th Dist. No. L-05-1199, 2006Ohio-4136, ¶ 62. “[T]he unreliability of the identification alone will not preclude its useas evidence at trial. Instead, such unreliability should be exposed through the rigors ofcross-examination.” State v. Mitchell, 5th Dist. No. 2013-Ohio- 3696, ¶ 26.A trial court has no roving commission to pre-approve the reliability of particulareyewitness identifications or to have experts pre-approve such identifications. Suchidentifications are admissible as relevant evidence, and the defense has several tools tochallenge such evidence at trial, including cross-examination and, in appropriate cases,the use of an expert witness testifying generally about factors that may impair theaccuracy of a typical eyewitness identification. State v. Buell, 22 Ohio St.3d 124 (1986).The majority report’s ill-advised effort to jump-start a new form of pretrial motionpractice in Ohio and to create yet another exclusionary rule again confirms the overall46pro-defense bent of the majority report.XXIV. ConclusionIn sum, a committee majority, operating under the openly conceded purpose ofimplementing the 2007 proposals of the American Bar Association’s anti-death penaltypro moratorium “Ohio Team,” has produced just what anyone would expect. A largenumber of the recommendations would establish a series of procedural and legislativenightmares that would render Ohio’s death penalty inoperable. This, of course, is a resultthe Death Penalty Task Force was not even permitted to consider. Sadly, theserecommendations have little to do with “fairness,” the stated goal of the Task Force.47