Take Action in Ohio

Three things you can do to take action:

     1) Write Your Ohio Legislators to Pass SB 296 to Repeal Ohio's Death Penalty.

     2) Write Governor DeWine to Support Repeal of Ohio's Death Penalty.

     3) Sign the petition to Governor DeWine urging him to lead the death penalty repeal effort.

Task Force Recommendations

Background

In 2007, Ohio was assessed as falling short in 93% of the American Bar Association (ABA) standards for a fair and accurate state death penalty system.

In 2011 Ohio Supreme Court Chief Justice Maureen O’Connor created the Joint Task Force to Review the Administration of Ohio’s Death Penalty in response to the overwhelming deficits that were outlined in the 2007 ABA report. The Task Force was comprised of judges, prosecutors, defense attorneys and academics. These experts met and discussed the many problems presented in the ABA report. After two years of review, the Task Force concluded its work in November of 2013 and subsequently published its findings in April of 2014.

Current Status

There were 56 recommendations; some very extensive in scope, others very segmented so as to cover a single topic area in multiple recommendations.

One of those single topic areas addressed through multiple recommendations was post-conviction relief practice/procedure – 6 recommendations (# 23 to 28) addressed this. Five (#24 -28) were enacted in a single piece of legislation S.B. 139, effective April 6, 2017. Changes were to extend the filing deadline, remove page limitations on the petition for relief, provide that a copy of the trial record is maintained at the county court level for use in the litigation, require that a judge make specific findings, and allow for the taking of depositions and subpoenas.

Recommendation 19 was to create a study commission to study how best to support the families of murder victims. This was the first recommendation enacted, in the 130th General Assembly H.B. 663, sec. 6, effective March 23, 2015, as part of a bill addressing execution by lethal injection and providing for secrecy respecting the suppliers of drugs.

Recommendation 46 was to require that a judge prepare and provide written jury instructions to the jury in capital cases. This was enacted in the above H.B. 633, amending ORC 2945.10.

Recommendations 16, 53, and 54 all addressed, in part, providing for a uniform attorney fee schedule for all private defense counsel appointed to capital cases. In H.B. 633, the legislature enacted ORC 120.33 (D), which called for this. Later, 2016 legislation created the capital case attorney fee council to set a unified capital case hourly rate for appointed counsel in all counties in all stages of capital litigation. A uniform increased hourly fee has been set by that body, to take effect in Sept. 2017. It is uncertain if this also impliedly addresses Recommendation 42, which recommended the legislature recognize a right to counsel in clemency proceedings. (The July 11, 2017 memo drafted by the Ohio Public Defender does not mention clemency when listing stages of capital litigation, but does state “and any other death penalty litigation carried out at the state level”.) Other aspects of Recommendations 53 and 54, dealing with expenses, have not been addressed.

AMONG KEY RECOMMENDATIONS THAT WERE NOT ADDRESSED ARE THE FOLLOWING:

  • Excluding those who suffer from serious mental illness at the time of their crime and /or at the time of execution from imposition of the death penalty
  • Narrowing the number of factors that qualify a crime as a death-eligible felony murder
  • Creating a death penalty charging committee at the Attorney General’s office to avert the present geographic disparities in death sentencing, and that a prosecutor provide a written rationale for a proposed plea agreement that will result in a less than death sentence
  • Adopting a Racial Justice Act allowing for free-standing racial disparity claims in Ohio courts
  • Foreclosing a death sentence where the state relies on jailhouse informant testimony that is not independently corroborated
  • Foreclosing a death sentence unless there is DNA or biological evidence, or a videotaped voluntary interrogation, or a video recording conclusively linking the defendant to the crime, or other like factors determined by the legislature
  • That a coroner’s office be accredited, or have a contract with an accredited crime lab; that all crime labs in Ohio be certified; and that the defense has a right to have evidence reviewed by an accredited crime lab if an earlier examination was not conducted by an accredited lab

Thirty executions are currently scheduled (as of November, 2020). Each case should be measured against these Task Force recommendations. Any case where a death sentence may have been precluded had one or more Task Force recommendations been in place at the time of the crime should receive special consideration for executive clemency.

Three things you can do to take action:

     1) Write Your Ohio Legislators to Pass SB 296 to Repeal Ohio's Death Penalty.

     2) Write Governor DeWine to Support Repeal of Ohio's Death Penalty.

     3) Sign the petition to Governor DeWine urging him to lead the death penalty repeal effort.

Task Force Recommendations

1. Any in-custody interrogation shall be electronically recorded, or if not, statements are presumed involuntary.

  • Task Force Vote: 13-5
  • Subcommittee: Law Enforcement
  • Status: Not Addressed

2. Require that each coroner’s office become accredited or have at least one person on staff or under contract who is a fellow of that organization, or have a contract with an accredited crime lab to perform specialized services when the need arises.

  • Task Force Vote: 18-1
  • Subcommittee: Law Enforcement
  • Status: Not Addressed

3. In a death-eligible case, excepting fingerprint evidence, if evidence is not originally reviewed by an accredited lab, the defense has a right to testing in an accredited lab at state expense, and no reference will be made to the first test (except to establish the evidence has been in the custody of the state). If testing of evidence prior to indictment will likely entail total consumption or destruction of evidence, the test must be performed in an accredited lab; and if it is to be tested after indictment, notice must first be given to all parties. If this requirement is not followed, the evidence is presumptively inadmissible unless good cause is shown to the trial court. On the request of the prosecution in a death penalty case, defense forensic experts shall also be required to rely on testing by accredited labs.

  • Task Force Vote: 17-2
  • Subcommittee: Law Enforcement Identifications and Interrogations
  • Status: Not Addressed

4. All crime labs in Ohio must be certified by a recognized agency defined by the Ohio legislature.

  • Task Force Vote: 10-6
  • Subcommittee: Law Enforcement
  • Status: Not Addressed

5. Enact legislation to require, prospectively, meaningful proportionality review to include cases where death was sought in the charges but not imposed; data also to be collected on all death-eligible homicides.

  • Task Force Vote: 10-7
  • Subcommittee: Defense Services
  • Status: Not Addressed

6. Mandating data to be collected on all death-eligible homicides.

  • Task Force Vote: 15-1
  • Subcommittee: Disparity
  • Status: Not Addressed

7. Amend legislation (R.C. 2929.03(F) to include the prosecutor preparing a report on the rationale for any plea agreement in a case charged capitally that ends in a penalty less than death, and providing this to the Ohio Supreme Court.

  • Task Force Vote: 15-1
  • Subcommittee: Judicial Role
  • Status: Not Addressed

8. Enact legislation to consider and exclude from eligibility for the death penalty defendants who suffer from “serious mental illness,” as defined by the legislature, at the time of the crime.

  • Task Force Vote: 15-2
  • Subcommittee: Defense Services
  • Status: Not Addressed

9. Enact legislation to exclude from eligibility from the death penalty defendants who suffer from “serious mental illness,” at the time of execution.

  • Task Force Vote: 12-7
  • Subcommittee: Defense Services
  • Status: Not Addressed

10. Where a pro se defendant (a person wishing to represent him or herself) is competent to stand trial but may not be competent to represent himself due to a mental health or developmental disability, the court may appoint counsel, or stand-by counsel, or co-counsel to assist the pro se defendant.

  • Task Force Vote: 11-1
  • Subcommittee:Judicial Role
  • Status: Not Addressed

11. Adopt the 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (and train counsel and judges on these).

  • Task Force Vote: 12-2
  • Subcommittee: Defense Services
  • Status: Not Addressed

12. Adopt the 2003 ABA Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (and train counsel and judges on these).

  • Task Force Vote: 13-4
  • Subcommittee: Defense Services
  • Status: Not Addressed

13. Enact and fund a capital litigation fund to pay for all costs, fees, and expenses.

  • Task Force Vote: 19-0
  • Subcommittee: Defense Services
  • Status: Not Addressed

14. Increase funding to the Office of the Ohio Public Defender to allow for additional hiring and training of qualified capital case attorneys who could be made available to all Ohio counties, except in circumstances where a conflict of interest arises.

  • Task Force Vote: 20-0
  • Subcommittee: Defense Services
  • Status: Not Addressed

15. Implement and fund a statewide public defender system for representation in all levels of capital cases except when a conflict of interest arises, when Rule 20 qualified counsel shall be appointed.

  • Task Force Vote: 13-3
  • Subcommittee: Defense Services
  • Status: Not Addressed

16. Private defense counsel appointed to represent death-eligible or death-sentenced defendants are to be equally paid throughout the State regardless of the location of the offense.

  • Task Force Vote: 16-0
  • Subcommittee: Defense Services
  • Status: Passed

17. Enact legislation that Death can only be imposed if the state presented DNA, video, video-taped confession, or other compelling evidence that links the defendant to the murder.

  • Task Force Vote: 12-6
  • Subcommittee: Defense Services
  • Status: Not Addressed

18. Bar a death sentence where the state relies solely on jailhouse informant testimony that is not independently corroborated at the guilt/innocence phase.

  • Task Force Vote: 19-0
  • Subcommittee: Defense Services
  • Status: Not Addressed

19. Victim’s family – the legislature should study how to best support families of murder/homicide victims in the short and long term.

  • Task Force Vote: 19-0
  • Subcommittee: Defense Services
  • Status: Passed

20. Enact legislation to provide that a jury may try a case on retrial following reversal of a bench trial.

  • Task Force Vote: 11-7
  • Subcommittee: Defense Services
  • Status: Not Addressed

21. Amend Rule 20 of the Rules of Superintendence for Ohio Courts to increase in the number of continuing legal education hours for defense attorneys under Sup.R. 20.

  • Task Force Vote:
  • Subcommittee:
  • Status: Not Addressed

22. Court rules shall be amended so that properly presented motion must be accepted for filing for a ruling by the court in a death penalty cases.

  • Task Force Vote: 18-0
  • Subcommittee: Defense Services
  • Status: Implemented by Ohio Judicial Conference Rule Change

23. Amend the qualifications necessary for post-conviction counsel.

  • Task Force Vote: 18-0
  • Subcommittee: Defense Services
  • Status: Not Addressed

24. Extend the filing period for a post-conviction relief (PCR) petition from 180 days to 365 days (after filing of the trial transcript/record in the Ohio Supreme Court).

  • Task Force Vote: 17-0
  • Subcommittee: Post-Conviction
  • Status: Passed

25. Judicial review and findings required regarding each claim.

  • Task Force Vote: 19-0
  • Subcommittee: Post-Conviction
  • Status: Passed

26. The common pleas clerk shall retain a copy of the original trial file in the common pleas clerk’s office even though it sends the originals to the Supreme Court of Ohio in connection with the direct appeal.

  • Task Force Vote: 19-0
  • Subcommittee: Post-Conviction
  • Status: Passed

27. PCR petitions page limitations removed.

  • Task Force Vote: 14-3
  • Subcommittee: Post-Conviction
  • Status: Passed

28. Amend R.C. §2953.21 to provide for depositions and subpoenas during discovery and post-conviction relief.

  • Task Force Vote: 13-3
  • Subcommittee: Post-Conviction
  • Status: Passed

29. Mandatory CLE for prosecutors and judges assigned to death cases on how to protect against racial bias.

  • Task Force Vote: 12-2
  • Subcommittee: Race & Ethnicity
  • Status: Not Addressed

30. A judge who reasonably believes a person any state actor has acted on the basis of race must report same to an appropriate supervisory authority.

  • Task Force Vote: 12-2
  • Subcommittee: Race & Ethnicity
  • Status: Not Addressed

31. Mandatory one hour CLE for defense counsel regarding development of race discrimination claims.

  • Task Force Vote: 13-1
  • Subcommittee: Race & Ethnicity
  • Status: Not Addressed

32. A defense counsel must seek recusal (asking the judge to remove themselves from hearing the case, or seeking removal by petitioning the Chief Justice of the Ohio Supreme Court), of any judge where there is a reasonable basis for concluding the judge’s decision could be affected by racially discriminatory factors.

  • Task Force Vote: 8-5
  • Subcommittee: Race & Ethnicity
  • Status: Not Addressed

33. Remove the following felony-murder specifications: aggravated murder in the course of kidnapping, rape, aggravated arson, aggravated robbery, and aggravated burglary as data shows death is rarely imposed and such will reduce the race (and geographic) disparity of the death penalty.

  • Task Force Vote: 12-2
  • Subcommittee: Race & Ethnicity
  • Status: Not Addressed

34. To address cross jurisdictional and racial discrepancy, creation of a Death Penalty Charging Committee at the Attorney General’s Office to approve or disapprove of charges.

  • Task Force Vote: 8-6
  • Subcommittee: Race & Ethnicity
  • Status: Not Addressed

35. Adopt a Racial Justice Act allowing for free-standing racial disparity claims in Ohio courts.

  • Task Force Vote: 13-1
  • Subcommittee: Race & Ethnicity
  • Status: Not Addressed

36. Enact legislation requiring every jurisdiction to create jury pools from the list of all registered voters and all licensed drivers who are U.S. citizens.

  • Task Force Vote: 12-2-1
  • Subcommittee: Defense Services
  • Status: Not Addressed

37. Enact a court rule that mandates, for both the prosecution and defense, full and complete access in capital cases to evidence known to exist or with due diligence could be found to exist, with an opportunity to test such evidence – excluding work product, material protected under Rule 16, or inculpatory or privileged material.

  • Task Force Vote: 17-0
  • Subcommittee: Defense Services
  • Status: Implemented by Ohio Judicial Conference Rule Change

38. Require the prosecutor to present to the grand jury available exculpatory evidence of which the prosecutor is aware.

  • Task Force Vote: 10-9
  • Subcommittee: Defense Services
  • Status: Not Addressed

39. Mandatory training for judges and mandatory pre-trial conferences on the record, as early as possible, addressing discovery, Brady disclosures, and appointment of experts (ex parte proceeding upon request of counsel regarding experts though on record), mandatory declaration of compliance by defense and prosecution with all discovery obligations and Brady.

  • Task Force Vote: 10-5
  • Subcommittee: Judicial Role
  • Status: Implemented by Ohio Judicial Conference Rule Change

40. The Ohio statute providing for attorney-client privilege should be amended to provide that a claim of ineffective assistance waives the privilege in order to allow full litigation of ineffectiveness claims. The waiver will be limited to the issue raised.

  • Task Force Vote:
  • Subcommittee:
  • Status: Passed

41. All parties will work on procedures to remove any impediments to a fair and timely resolution of death penalty cases in the Ohio courts.

  • Task Force Vote: 12-6
  • Subcommittee: Prosecutorial Issues
  • Status: Not Addressed

42. Clemency proceedings should include a formalized right to counsel.

  • Task Force Vote: 15-0
  • Subcommittee: Clemency
  • Status: Not Addressed

43. During clemency proceedings, a) & b) the proceedings and interview of inmate are to be recorded; c) inmate’s counsel allowed to counsel the client during the interview; d) Parole Board must reveal all information it considers in reaching its decision; e) inmate’s master file is to be released to inmate’s counsel 6 months before hearing; f) state and inmate’s counsel disclose and exchange all information is to be relied upon at the hearing 30 days prior to the hearing, with a continuing duty to disclose any new information to be relied upon; g) & h) adequate funding for a mental health expert if needed and for private counsel representation.

  • Task Force Vote: a. 17-1 b. 16-2 c. 11-8 d. 18-1 e. 18-0 f. 18-0 g. 12-2 h. 11-1 i. 18-0
  • Subcommittee: Clemency
  • Status: Not Addressed

44. Improve jury instructions by conducting an annual review.

  • Task Force Vote: 16-0
  • Subcommittee: Defense Services
  • Status: Not Addressed

45. Use “plain English” instructions.

  • Task Force Vote: 14-1-1
  • Subcommittee: Defense Services
  • Status: Not Addressed

46. Require jurors to receive written copies of the judge’s entire oral charge.

  • Task Force Vote: 16-0
  • Subcommittee: Defense Services
  • Status: Passed

47. Improving jury instructions by making clear that the jury must always be given the option of extending mercy that arises from the evidence.

  • Task Force Vote: 10-8
  • Subcommittee: Post-Conviction
  • Status: Not Addressed

48. Improving jury instructions making clear that the process for weighing aggravating and mitigating circumstances is not a numerical one.

  • Task Force Vote:
  • Subcommittee:
  • Status: Not Addressed

49. Expand and enhance training requirements to all participating legal counsel (appointed and retained) and to all Ohio judges at all levels, which could be waived in exceptional circumstances with the consent of the Ohio Supreme Court if their qualification otherwise exceed the standards required by the Rule.

  • Task Force Vote: 21-0
  • Subcommittee: Judicial Role
  • Status: Not Addressed

50. Implementation of educational guidance for Presiding Judges as to when and how to intervene (procedure to follow) in situations of potential ineffective lawyering.

  • Task Force Vote: 17-4
  • Subcommittee: Judicial Role
  • Status: Not Addressed

51. The Trial Judge is the appropriate authority to appoint legal counsel in a capital case.

  • Task Force Vote: 14-5
  • Subcommittee: Judicial Role
  • Status: Not Addressed

52. Directing that the trial judge is the appropriate authority for the appointment of experts for indigent defendants.

  • Task Force Vote: 13-5
  • Subcommittee: Judicial Role
  • Status: Implemented by Ohio Judicial Conference rule change

53. Adopt a uniform process for selection of indigent counsel, including establishing a uniform fee and expense schedule.

  • Task Force Vote: 20-0
  • Subcommittee: Judicial Role
  • Status: Not Addressed

54. Adopt a uniform process for selection of indigent counsel, including establishing a uniform fee and expense schedule, wherein the main objective should always be to assure the best educationally and experienced-qualified candidate.

  • Task Force Vote: 21-0
  • Subcommittee: Judicial Role
  • Status: Not Addressed

55. Adopt reporting standards to provide complete transparency of record, to assure strict compliance with due process that may include unique constitutional or evidentiary issues, significant motions, plea rationale, pre-sentence investigation, to be submitted to the Ohio Supreme Court on completion of the case.

  • Task Force Vote: 16-0
  • Subcommittee: Judicial Role
  • Status: Not Addressed

56. Adopt a rule to provide for the mandatory training of attorneys and judges, the selection and appointment of indigent counsel in capital cases, and the enforcement of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases and the Supplementary Guidelines for the Mitigation Function of Defense Teams.

  • Task Force Vote: 16-0
  • Subcommittee: Judicial Role
  • Status: Not Addressed