Between 1803 and 1885, convicted murderers and other criminals were executed
by hanging in the county in which the defendant was found guilty. In 1885
legislation was passed that required all executions to be carried out
by hanging at the Ohio Penitentiary in Columbus. 56-year-old Valentine
Wagner of Morrow County was the first person to be executed under the
new legislation after he was convicted of murdering a Mount Gilead resident.
In 1897, the first person to be executed by the electric chair in this
state was a seventeen (17) year old child named William Haas of Hamilton
County. In all 315 people were put to death by the electric chair from
1897 until 1963. From that point on, a series of changes in the law and
U.S. Supreme Court decisions rendered Ohio's death penalty nullity
until it was revised in 1981.
In all, the State has executed approximately 498 people, according to the
Death Penalty Information Center. Currently, there are 147 people on death
row in Ohio, one of which is a woman.
In approximately six weeks, the State of Ohio will execute its 499th individual
- Harry D. Mitts, Jr. of Garfield Heights in Cuyahoga County by lethal
injection. In a1994, Harry was convicted of two (2) counts of aggravated
murder. A jury, ultimately determined that he took the life of a 28-year-old
man and a 44-year-old police.
In Ohio, a murder charge alone is not sufficient for the State to seek
the death penalty. Rather, for a case to qualify for the capital punishment,
the murder must involve "aggravating circumstances." The law
provides specific circumstances which it considers "aggravating"
that includes most often:
- the killing of someone or unlawfully terminating their pregnancy purposely
and with planning in place (i.e. "with malice aforethought");
- the killing of someone or unlawfully terminating their pregnancy while
committing, attempting to commit or fleeing after committing kidnapping,
rape, aggravated arson, arson, aggravated robbery, robbery, aggravated
burglary, burglary, trespass in a habitation when a person is present
or likely to be present, terrorism, or escape;
- purposely killing someone under 13;
- purposely killing someone while in prison for another felony or while escaped
from prison; and/or
- purposely killing a law officer while he or she was engaged in official
duties and that person specifically meant to kill a law enforcement officer.
However, the State's burden is not that simple. In a capital case,
the structure of the trial, itself, is highly formalized.
Every capital defense case (i.e. case wherein the State seeks the death
penalty) is broken down into two (2) phases: (1) the trial phase and (2)
the mitigation phase. In addition, unless the Defendant can afford to
hire an attorney (which is rare), the Court is required to appoint trial
counsel, co-counsel, an investigator and a mitigation expert. The Defendant
also has a choice of to whom he can try his case. He can either try the
case to a jury or a three (3) judge panel.
The first phase - trial - has become a highly technical and specialized
area of law that includes masses of pretrial motions meant to preserve
the appellate rights of the Defendant, both in the State courts and in
Federal habeas corpus proceedings. The Defendants undergo extensive psychological
and neuropsychological examinations to ensure that they are fit for trial.
The trial counsel and co-counsel practically shut down their offices,
and focus on little but investigating and litigating the case before them.
Every witness is interviewed, over and again. Every police report, witness
report, forensic analysis, chemical testing report is reviewed until it
is nearly memorized. The scene is reviewed and photographed. And hours
upon hours are spent in a small room with a window and a locked steal
door, talking to the client until late into the night. The lawyerslearn their case from the perspective of every individual involved and prepare
accordingly as though their lives are on the line. Before they ever step
into Court, the Defendant's attorneys and support team have significantly
sacrificed themselves, their families and their practices.
During that initial phase, the State and the Defense are also negotiating.
They are arguing the logistics of their case and positioning themselves
for potential plea agreements. In some cases, the Defendant's attorneys
understand that their cause may be lost and, as such, they are fighting
for life in prison - with or without the potential of parole - or even
some lesser charge. But other times, either the State is insistent on
death or the facts are such that trial is the only option. Under these
circumstances, every phase of the trial is heightened - even jury selection.
In the trial phase, jury selection is done on an individual, juror by juror,
basis. The process can take anywhere from three (3) days to three (3)
weeks, depending upon the complexity of the case. But once the jury is
seated, it is business as usual - the same rules of procedure and evidence
apply as in any other trial - only this time, the stakes are higher: life
and death. This is where the great trial lawyer shines.
Clarence Darrow tried more than one hundred (100) capital cases and only
one of his clients was executed. The legendary attorney Percy Fourman
of Houston, Texas is said to have tried more than 500 murder cases, and
he that saved the lives of all but twenty (20) of his clients. But, understand,
simply because a lawyer saves his client from the gallows or the death
chamber, does not mean that individual walks out of the courtroom a free
man or woman; rather, most often these folks are convicted of murder;
but, instead of death, they are sentenced to life or life without parole.
In such a situation - where a Defendant is found guilty of murder - the
Court begins the sentencing/ mitigation phase. It is here where a jury
decides whether the Defendant will live or die. The Defense is entitled
and expected, to put on mitigating evidence in an attempt to frame and
explain the actions of the Defendant.
Under many circumstances, the Defendant was physically or sexually abused
as a child, is mentally ill, suffered some trauma in childhood, adulthood
or maybe even in combat. Ohio Revised Code§2929.04 sets forth a complete
list those aggravating and mitigating circumstances which a jury must
consider before they sentence a Defendant convicted of aggravated murder
to death by lethal injection.
In this phase, the lawyer is challenged to connect with each member of
the jury, to generate empathy in the jury box, and to give a juror - any
juror - a reason to choose life. Here, the psychologist or neuropsychologist
takes the stand and explains the psychology and/or breakdown in the Defendant's
mental capacity which caused him or her to make that awful decision to
take life. And, the mitigation specialist - who has spent months reviewing
school records, family records, interviewing family, friends and enemies,
and creating a profile that takes a "monster" and turns him
into a man in the jury's eyes - presents his argument for life.
Thereafter, depending on the jury's decision, the long and extremely
complicated State and Federal appeals process begins. But that is for
another article. Essentially, the foregoing is the short, short version
of a process that is intricate, technical and requires an uncommon commitment
and devotion to one's craft.
While any licensed attorney can be retained to represent a person charged
with capital murder, the Supreme Court of Ohio will not allow just anyone
to be court-appointed to defend a capital case. In order to be court-appointed
trial counsel, a lawyer must have five years of experience in criminal
law and must have tried at least two (2) major felonies in front of a
jury. To be court-appointed co-counsel, the attorney must have at least
three (3) years of criminal law experience and must have tried at least
one (1) major felony.
If you or someone you know is charged with murder, aggravated murder, manslaughter,
or any other form of homicide or other violent crime (i.e. aggravated
assault [with or without a deadly weapon], aggravated burglary, felonious
assault, burglary, etc.) it is
of the utmost importance that you hire an experienced criminal defense attorney who understands
the level of detail that a case of this nature requires.
In my practice, we have successfully defended homicide cases and other
violent crimes. We work hard to stay at the cutting edge in defense techniques,
and up-to-date on the latest scientific and forensic methods and techniques
of investigation and exoneration. My office is constantly undergoing legal
education seminars that focus on eyewitness identification, scientific
forensics/ analysis, DNA, medical, psychological and neuropsychological
issues that go hand-in-hand with preparing the best possible defense to
such crimes. We utilize only the finest private investigators, accident
reconstructionists, medical experts and neuropsychologists in the state
and in the country with whom we consult and call as expert witnesses when
We are available day or night to meet our clients' needs and to provide
him or her with the most effective defense available. Our office utilizes
the latest in trial technology to present our case in the most creative
and persuasive manner possible.
If you or someone you know finds yourself charged or under investigation
for such a crime, contact our office immediately.