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Aggravated Murder in Ohio: The Vestige of the Death Penalty

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 necessary.

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.

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