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.

Ohioans to Stop Executions has created this searchable tool to help you explore the recommendations of the Ohio Supreme Court Joint Task Force to Review the Administration of Ohio’s Death Penalty.

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.

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As long as the death penalty remains, Ohioans who want to help ensure that it is fair should click  here  to sign up for updates and information from Ohioans to Stop Executions and be involved in the process!


Browse through the Supreme Court Task Force’s recommendations below.

 

  • Select “OTSE Priority Recommendations” to see the recommendations that Ohioans to Stop Executions has identified as critical and urgent for ensuring just reform of Ohio’s death penalty system.
  • To see all of the Supreme Court Task Force’s recommendation grouped by issue area, select “All Recommendations.”
  • Learn more about a recommendation by clicking “Read More.”
  • If you have trouble viewing a list of recommendations, try refreshing your browser window (F5).

OTSE Priority Recommendations

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All Recommendations

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  • OTSE Priority Recommendations

    Recommendation Subcommittee Task Force Vote

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

    Defense Services 12-7 Read More

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

    OTSE Priority Recommendation
    Defense Services Subcommittee
    Legislation Required

    This proposal asks the legislature to ban execution of those who suffer from serious mental illness at at the time of execution. Instead, a life sentence would be imposed. Under Ohio’s earlier 1974 death penalty law, death was foreclosed if the defendant suffered from such a mental illness that they lacked the substantial capacity to know right from wrong or to conform their conduct to the law. So excluding the mentally ill would essentially be returning to the way our law had been years ago. Some may ask how the mentally ill could ever end up on death row, when they are not the worst of the worst offenders. But current Ohio law readily allows this to happen. Ohio law simply allows the consideration of mental illness as one mitigating factor that could call for a sentence less than death that is weighed against the aggravating factors; it does not say a jury must give this great weight, so a weighing might conclude with a death verdict. Indeed, the problem begins earlier at the trial or guilt-innocence phase of the case. Ohio law greatly limits the insanity test, and also forecloses expert testimony at trial about the mental illness or organic brain damage of a defendant if the insanity test is not met. So juries may never learn of the mental illness at the time they are considering whether the defendant is guilty of the aggravated murder or specifications, or be aware of such information when deciding whether the defendant “purposely” or “with prior calculation and design” killed another. Those elements require a conscious desire to kill, a high level of knowledge, intent, purpose and premediation and weighing of a course of action of killing. A seriously mentally ill person may not have ever functioned at this high level, but could nonetheless be convicted of a death-eligible crime, because they cannot submit the needed expert evidence that would raise a reasonable doubt about whether they ever possessed this intent. Thus, a seriously mentally ill person may be convicted of a death-eligible crime that they did not in fact commit because the mental illness information that would question it is not admissible. This contributes to the numbers of seriously mentally ill on death row. The proposal also forecloses executing a person who has become seriously mentally ill while on death row. Death row conditions and other factors may bring about deterioration of mental health to an extent that it may limit to some extent the inmate’s understanding of the penalty and the reasons it is being imposed. Executions in such circumstances may also offend the evolving standards of decency, and call for imposition of a life sentence. This proposals leave it to the legislature to define “serious mental illness.”

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

    2. 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.

    Race & Ethnicity 12-2 Read More

    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.

    OTSE Priority Recommendation
    Race & Ethnicity Subcommittee
    Legislation Required

    Death can only be imposed when the jury (or the panel of three judges if the jury is waived) has found both aggravated murder and an aggravating circumstance or specification. One of the many specifications is killing during the course of committing or attempting to commit or fleeing immediately after committing certain felonies (the so-called felony-murder specification, see R.C. 2929.03(A)(7)). Based upon data showing that prosecutors and juries overwhelmingly do not find felony murder to be “the worst of the worst” murders (which death sentencing is to be reserved for), further finding that such specifications result in death verdicts 7% of the time or less when charged as a death penalty case, and further finding that removal of these specifications will reduce the race disparity of the death penalty, the Ohio Supreme Court Joint Task Force recommended to the legislature that the following specifications be removed from the statutes: Kidnapping, Rape, Aggravated Arson, Aggravated Robbery, and Aggravated Burglary (the R.C. 2929.04(A)(7) specification).

    Full Text of Recommendation: Based upon attached data showing that prosecutors and juries overwhelmingly do not find Felony Murder to be the worst of the worst murders, further finding that such specifications result in death verdicts 7% of the time or less when charged as a death penalty case, and further finding that removal of these specifications will reduce the race disparity of the death penalty , it should be recommended to the legislature that the following specifications be removed from the statutes: Kidnapping, Rape, Agg Arson, Agg Robbery, and Agg Burglarly.

    3. 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.

    Race & Ethnicity 8-6 Read More

    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.

    Race & Ethnicity Subcommittee
    Legislation Required

    Having a local prosecutor’s decision to seek death reviewed by a committee of former county prosecutors appointed by the Governor and members of the Ohio Attorney General’s staff, would help assure that a county prosecutors’ individual idiosyncrasies or interpretations of the law are not creating unfair disparities from one county to another or possibly arbitrary or discriminatory decision-making. Federal prosecutors are required to follow such a policy, submitting their intent to seek death to the seasoned review of the U.S. Attorney General. Such a policy is needed here, given the disparities shown by race statistics above, and geography statistics below.

    Full Text of Recommendation: To address cross jurisdictional racial discrepancy it is recommended that Ohio create a Death Penalty charging committee at the Ohio Attorney General’s Office. It is recommended that the committee be made up of former county prosecutors appointed by the Governor and members of the Ohio Attorney General’s staff. County Prosecutors would submit cases they want to charge with death as a potential punishment. The Attorney General’s office would approve or disapprove of the charges paying particular attention to the race of the victim(s) and defendant(s).

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

    Race & Ethnicity 13-1 Read More

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

    OTSE Priority Recommendation
    Race & Ethnicity Subcommittee
    Legislation Required

    Like a housing or employment discrimination case that relies on statistical disparities to raise a challenge, a Racial Justice Act would allow the use of statistics to show a likelihood of race discrimination infecting a prosecution or decisions made during the prosecution, that would oblige the State to show there was no discrimination as there are race-neutral reasons that explain the decision-made. Present law forecloses looking at issues of race discrimination unless the defendant proves a state actor intentionally discriminated, which is nearly impossible to prove unless someone admits to discrimination, and presently statistics are not enough to raise a challenge or even get an opportunity to have access to information that may help prove discrimination occurred.

    Full Text of Recommendation: Enact legislation allowing for these types of claims to be raised and developed in State Court through a Racial Justice Act with such a claim being independent of whether the client has any other basis for filing in that court.

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

    Defense Services 19-0 Read More

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

    OTSE Priority Recommendation
    Defense Services Subcommittee
    Legislation Required
    Passed Unanimously

    Present victim and witness assistance programs operate within the prosecutor’s office and are often geared to the prosecution of the cases, though victims may need more forms of support and a lengthier period to help them deal with their loss. This proposal encourages the legislature to look further at how best to support families.

    Full Text of Recommendation: The legislature should study how best to support families of murder/homicide victims in the short and long term.

    6. 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.

    Defense Services 15-2 Read More

    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.

    OTSE Priority Recommendation
    Defense Services Subcommittee
    Legislation Required

    This proposal asks the legislature to ban execution of those who suffer from serious mental illness at the time of the crime. Instead, a life sentence would be imposed. Under Ohio’s earlier 1974 death penalty law, death was foreclosed if the defendant suffered from such a mental illness that they lacked the substantial capacity to know right from wrong or to conform their conduct to the law. So excluding the mentally ill would essentially be returning to the way our law had been years ago. Some may ask how the mentally ill could ever end up on death row, when they are not the worst of the worst offenders. But current Ohio law readily allows this to happen. Ohio law simply allows the consideration of mental illness as one mitigating factor that could call for a sentence less than death that is weighed against the aggravating factors; it does not say a jury must give this great weight, so a weighing might conclude with a death verdict. Indeed, the problem begins earlier at the trial or guilt-innocence phase of the case. Ohio law greatly limits the insanity test, and also forecloses expert testimony at trial about the mental illness or organic brain damage of a defendant if the insanity test is not met. So juries may never learn of the mental illness at the time they are considering whether the defendant is guilty of the aggravated murder or specifications, or be aware of such information when deciding whether the defendant “purposely” or “with prior calculation and design” killed another. Those elements require a conscious desire to kill, a high level of knowledge, intent, purpose and premediation and weighing of a course of action of killing. A seriously mentally ill person may not have ever functioned at this high level, but could nonetheless be convicted of a death-eligible crime, because they cannot submit the needed expert evidence that would raise a reasonable doubt about whether they ever possessed this intent. Thus, a seriously mentally ill person may be convicted of a death-eligible crime that they did not in fact commit because the mental illness information that would question it is not admissible. This contributes to the numbers of seriously mentally ill on death row. The proposal also forecloses executing a person who has become seriously mentally ill while on death row. Death row conditions and other factors may bring about deterioration of mental health to an extent that it may limit to some extent the inmate’s understanding of the penalty and the reasons it is being imposed. Executions in such circumstances may also offend the evolving standards of decency, and call for imposition of a life sentence. These proposals leave it to the legislature to define “serious mental illness.”

    Full Text of Recommendation: Enact legislation to consider and exclude from eligibility for the death penalty defendants who suffered from “serious mental Illness,” as defined by the legislature at the time of the crime. Appropriate questions for the legislature to consider include: • Whether “serious mental illness,” is causally related to the crime? • Whether the determination of “serious mental illness,” should be considered before trial or at some time as determined by the legislature? • Whether the issue is already adequately addressed by the current law?

  •   

    All Recommendations

    Recommendation Subcommittee Task Force Vote

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

    Law Enforcement 13-5 Read More

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

    Law Enforcement Subcommittee
    Legislation Required

    False confessions were present in 8 of 86 death row exonerations, and in 25% of DNA exonerations innocent defendants made incriminating statements or pled guilty to a crime they did not commit. Police interrogation techniques may bring to bear external influences inducing statements that are not true. Recording these interrogations can reveal pressures and other factors that may suggest a confession should not be trusted. Under present SB 77 law in Ohio, some incentive to record confessions is present, as when an interrogation is recorded, the person making the statements has the burden of proving that any statements made were not voluntary and thus inadmissible at trial. But there is no penalty against the law enforcement agency if the law enforcement officer fails to electronically record a custodial interrogation as required. Fifteen states and the District of Columbia presently require that custodial interrogations be audio or videotaped to be admissible in court against the accused. Although some Joint Task Force members believe confessions should not be admissible at all if not recorded, a majority of the Joint Task Force recommended that unrecorded statements made during an interrogation should be presumed involuntary and inadmissible (thus shifting the burden from the defense to the prosecution to admit the statements when not recorded).

    Full Text of Recommendation: Any in custody interrogation, as defined by Miranda v. Arizona, shall be electronically recorded. If the interrogation is not electronically recorded, statements made during the interrogation are presumed involuntary.

    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.

    Law Enforcement 18-1 Read More

    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.

    Law Enforcement Subcommittee
    Supreme Court Action Required

    This measure will require or at least greatly encourage use of accredited labs and/or qualified expert personnel, and assure an opportunity for representatives of both the state and defense to be present when evidence that is to be tested will at the same time be destroyed and unavailable for further testing. This measure is needed to ensure reliability in capital cases.

    Full Text of Recommendation: Require that each coroner’s office become accredited by the National Association of Medical Examiners (NAME), or have at least one person on staff or under contract who is a fellow of that organization (and who performs the procedure in the case), or have in place a contract with an accredited crime lab. Such a requirement would not require the coroner to refer all post mortems, and would preserve the coroner’s judgment as to which ones involved criminal activity. However, it would guarantee that the office either has successfully sought accreditation or has in place contracts with properly trained people to perform these kinds of specialized services when in the coroner’s judgment the need arises.

    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.

    Law Enforcement Identifications and Interrogations 17-2 Read More

    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.

    Law Enforcement Subcommittee
    Supreme Court Action Required

    This measure will require or at least greatly encourage use of accredited labs and/or qualified expert personnel, and assure an opportunity for representatives of both the state and defense to be present when evidence that is to be tested will at the same time be destroyed and unavailable for further testing. This measure is needed to ensure reliability in capital cases.

    Full Text of Recommendation: Subject to the special rule specified in 1(a) below, if evidence of the sort customarily subject to testing in a laboratory in a death penalty case is not originally reviewed by an accredited lab, then the defendant has the right to have the evidence reviewed a second time by an accredited lab. More specifically, any prosecution evidence that has not been tested in an accredited lab shall be retested in an accredited lab, at the request of the defendant and at the state’s expense. If such a request is made, there will be no reference to the first test (in a non-accredited lab) except as may be necessary to establish chain of custody. Defense forensic experts shall also be required, by Supreme Court Rule, to rely on testing by accredited labs, at the request of the prosecution, in death penalty cases. a. The following rules will apply to death-penalty-eligible cases in which testing of evidence is performed under circumstances that will likely entail the total consumption or destruction of the evidence to be tested: i. Where the testing is performed prior to indictment, the testing must be performed in the first instance by an accredited lab; ii. Where the testing is performed subsequent to indictment, the testing must be performed by an accredited laboratory and the court to which the case is assigned must grant prior permission, with notice to the parties, for the test. In the event the foregoing rules in this Section 1(a) are not observed, the results of the test shall be presumptively inadmissible, but the presumption may be overcome by good cause shown to the court to which the case is assigned, and if the court deems such evidence to be admissible, the court shall appropriately instruct the jury on the weight that it may choose to give that evidence. This recommendation does not apply to fingerprint evidence. “Accredited lab” means a lab that is accredited by any of the following: American Society of Crime Laboratory Accreditation Board (ASCLD/LAB); Forensic Quality Services, A.K.A. National Forensic Science Technology Center; or American Association for Laboratory Accreditation (AALA).

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

    Law Enforcement 10-6 Read More

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

    Disparity Subcommittee
    Legislation Required

    As the National Academy of Sciences and others agree, with the increased reliance on forensic evidence—including DNA, ballistics, fingerprinting, handwriting comparisons, and hair samples—it is vital that crime laboratories and medical examiner offices, as well as forensic and medical examiners, provide reliable, accurate results. “Junk science” (mishandled evidence or use of unqualified experts) was involved in 9 of the first 81 death row exonerations. The State of Ohio does not presently require the accreditation of crime laboratories. Though the State’s Bureau of Criminal Investigation and some local crime laboratories voluntarily have obtained accreditation through national accreditation programs, others have not. This should be required.

    Full Text of Recommendation: Enact legislation to require all crime labs in Ohio must be certified by a recognized agency as defined by the Ohio legislature.

    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.

    Defense Services 10-7 Read More

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

    Defense Services Subcommittee
    Legislation Required

    This provision will require in future cases that the Court’s review include the universe of cases that started as capitally-charged cases and that ended in life or other sentences. To reduce the risk of arbitrary capital charges and possible discrimination based on race or ethnicity or other factor, in the future data will be collected about all cases that could have been capitally-charged but were not. The ABA Joint Task Force recommended strengthening the proportionality review conducted by the Ohio Supreme Court when it hears a capital appeal. The Ohio statute R.C. 2929.05 requires the Court to determine whether the death sentence in the case before them on appeal is excessive or disproportionate to the penalty imposed on in similar cases, and if so, to reverse because the death penalty is inappropriate. However, the Ohio Supreme Court has never found a death sentence disproportionate, and its ability to do so is undermined by the fact that it has not compared life-sentence cases, though such cases were intended to be considered by the legislature, which had ordered that the Court collect the opinions written by trial court judges when a life sentence was imposed, ie. The judge’s explanations why the jury or panel of judges found the aggravating factors did not outweigh the mitigating circumstances. Without comparing these life sentence cases, the Court only saw other death cases and simply wound up pointing to other cases where death had been imposed with these aggravating factors present. Since most cases now end in a life sentence, this is like comparing only other apples, when the apples were to be compared with the oranges. The Court cannot hope to identify the inappropriate, arbitrary, and/or aberrant death sentences that should be reversed and modified to life as the legislature intended, if they are only considering other death sentences.

    Full Text of Recommendation: Enact legislation to require prospective proportionality review in death penalty cases to include cases where the death penalty was charged in the indictment or information but not imposed.

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

    Disparity 15-1 Read More

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

    Disparity Subcommittee
    Supreme Court Action Required

    To reduce the risk of arbitrary capital charges and possible discrimination based on race or ethnicity or other factor, in the future data will be collected about all cases that could have been capitally-charged but were not.

    Full Text of Recommendation: The Supreme Court of Ohio by court rule should mandate that, prospectively, all death eligible homicides be reported to a central warehouse both at the charging stage and at the conclusion of the case at the trial level.

    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.

    Judicial Role 15-1 Read More

    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.

    Judicial Role Subcommittee
    Legislation Required

    The present legislation provided for life opinions in cases that went to in to penalty phase deliberations and ended in a life sentence. This provision expands that to require that the prosecutor explain the rationale of a plea agreement when a capitally-charged case results by plea agreement in a penalty less than death. This again provides a basis for realistic comparisons of excessive or disproportionate sentences, since it is possible that similar cases may have been resolved by guilty plea and a lesser sentence.

    Full Text of Recommendation: Amend R.C. §2929.03 (F) to include the necessity for a Prosecutor’s rationale of a proposed plea agreement, on the record, for any indicted capital offense that results in a plea for a penalty less than death.

    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.

    Defense Services 15-2 Read More

    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.

    OTSE Priority Recommendation
    Defense Services Subcommittee
    Legislation Required

    This proposal asks the legislature to ban execution of those who suffer from serious mental illness at the time of the crime. Instead, a life sentence would be imposed. Under Ohio’s earlier 1974 death penalty law, death was foreclosed if the defendant suffered from such a mental illness that they lacked the substantial capacity to know right from wrong or to conform their conduct to the law. So excluding the mentally ill would essentially be returning to the way our law had been years ago. Some may ask how the mentally ill could ever end up on death row, when they are not the worst of the worst offenders. But current Ohio law readily allows this to happen. Ohio law simply allows the consideration of mental illness as one mitigating factor that could call for a sentence less than death that is weighed against the aggravating factors; it does not say a jury must give this great weight, so a weighing might conclude with a death verdict. Indeed, the problem begins earlier at the trial or guilt-innocence phase of the case. Ohio law greatly limits the insanity test, and also forecloses expert testimony at trial about the mental illness or organic brain damage of a defendant if the insanity test is not met. So juries may never learn of the mental illness at the time they are considering whether the defendant is guilty of the aggravated murder or specifications, or be aware of such information when deciding whether the defendant “purposely” or “with prior calculation and design” killed another. Those elements require a conscious desire to kill, a high level of knowledge, intent, purpose and premediation and weighing of a course of action of killing. A seriously mentally ill person may not have ever functioned at this high level, but could nonetheless be convicted of a death-eligible crime, because they cannot submit the needed expert evidence that would raise a reasonable doubt about whether they ever possessed this intent. Thus, a seriously mentally ill person may be convicted of a death-eligible crime that they did not in fact commit because the mental illness information that would question it is not admissible. This contributes to the numbers of seriously mentally ill on death row. The proposal also forecloses executing a person who has become seriously mentally ill while on death row. Death row conditions and other factors may bring about deterioration of mental health to an extent that it may limit to some extent the inmate’s understanding of the penalty and the reasons it is being imposed. Executions in such circumstances may also offend the evolving standards of decency, and call for imposition of a life sentence. These proposals leave it to the legislature to define “serious mental illness.”

    Full Text of Recommendation: Enact legislation to consider and exclude from eligibility for the death penalty defendants who suffered from “serious mental Illness,” as defined by the legislature at the time of the crime. Appropriate questions for the legislature to consider include: • Whether “serious mental illness,” is causally related to the crime? • Whether the determination of “serious mental illness,” should be considered before trial or at some time as determined by the legislature? • Whether the issue is already adequately addressed by the current law?

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

    Defense Services 12-7 Read More

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

    OTSE Priority Recommendation
    Defense Services Subcommittee
    Legislation Required

    This proposal asks the legislature to ban execution of those who suffer from serious mental illness at the time of execution. Instead, a life sentence would be imposed. Under Ohio’s earlier 1974 death penalty law, death was foreclosed if the defendant suffered from such a mental illness that they lacked the substantial capacity to know right from wrong or to conform their conduct to the law. So excluding the mentally ill would essentially be returning to the way our law had been years ago. Some may ask how the mentally ill could ever end up on death row, when they are not the worst of the worst offenders. But current Ohio law readily allows this to happen. Ohio law simply allows the consideration of mental illness as one mitigating factor that could call for a sentence less than death that is weighed against the aggravating factors; it does not say a jury must give this great weight, so a weighing might conclude with a death verdict. Indeed, the problem begins earlier at the trial or guilt-innocence phase of the case. Ohio law greatly limits the insanity test, and also forecloses expert testimony at trial about the mental illness or organic brain damage of a defendant if the insanity test is not met. So juries may never learn of the mental illness at the time they are considering whether the defendant is guilty of the aggravated murder or specifications, or be aware of such information when deciding whether the defendant “purposely” or “with prior calculation and design” killed another. Those elements require a conscious desire to kill, a high level of knowledge, intent, purpose and premediation and weighing of a course of action of killing. A seriously mentally ill person may not have ever functioned at this high level, but could nonetheless be convicted of a death-eligible crime, because they cannot submit the needed expert evidence that would raise a reasonable doubt about whether they ever possessed this intent. Thus, a seriously mentally ill person may be convicted of a death-eligible crime that they did not in fact commit because the mental illness information that would question it is not admissible. This contributes to the numbers of seriously mentally ill on death row. The proposal also forecloses executing a person who has become seriously mentally ill while on death row. Death row conditions and other factors may bring about deterioration of mental health to an extent that it may limit to some extent the inmate’s understanding of the penalty and the reasons it is being imposed. Executions in such circumstances may also offend the evolving standards of decency, and call for imposition of a life sentence. This proposals leave it to the legislature to define “serious mental illness.”

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

    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.

    Judicial Role 11-1 Read More

    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.

    Judicial Role Subcommittee
    Supreme Court Action Required

    This proposal is consistent with U.S. Supreme Court decisions that recognize a defendant has a right to represent themselves, but too, that though the defendant may be competent to stand trial (able to understand the proceedings), if they are mentally ill or mentally disabled, they may not be in a position to undertake the presentation of the defense or challenging of the state’s case without some form of legal assistance (actually appointing counsel to handle the case, or appointing a stand-by counsel who could advise the defendant when needed, or allowing the defendant to act as a co-counsel with an attorney).

    Full Text of Recommendation: Adoption of an Order, in the case of a Pro Se Defendant who is competent to stand trial but may not be competent to represent himself or herself because of a mental health or developmental disability, directing either the appointment of counsel to conduct the Trial or to act as “stand-by counsel” or “co-counsel” to assist the Pro Se defendant, or to assume or resume to proceed with Trial as counsel of record, in the event Defendant changes mind about proceeding as a Pro Se litigant. Note re: Indiana v. Edwards, 554 U.S. 164

    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).

    Defense Services 12-2 Read More

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

    Defense Services Subcommittee
    Legislation Required

    The ABA Guidelines put forth standards for an independent committee to assist in the appointment process and monitor counsel’s performance, and identify the duties of competent counsel at each phase of capital litigation. The Supplementary Guidelines address the investigation and presentation of mitigating evidence, clarifying that counsel must rely on the assistance of experts, investigators and mitigation specialists in developing mitigating evidence. This proposal would not alter the present constitutional standards for providing effective assistance. These Guidelines have been relied on by the courts in determining whether counsel has performed in a competent way, so adoption of these standards will provide more clear guidance to the defense, prosecuting attorneys, and the courts, as to what is expected and needs to be done to ensure a defendant receives effective representation. This will in turn protect the innocent, ensure more reliable and appropriate decisions, and avoid costly retrials.

    Full Text of Recommendation: Adopt the 2003 American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in death penalty cases.

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

    Defense Services 13-4 Read More

    Adopt the 2003 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 in Death Penalty Cases (and train counsel and judges on these).

    Defense Services Subcommittee
    Supreme Court Action Required

    The ABA Guidelines put forth standards for an independent committee to assist in the appointment process and monitor counsel’s performance, and identify the duties of competent counsel at each phase of capital litigation. The Supplementary Guidelines address the investigation and presentation of mitigating evidence, clarifying that counsel must rely on the assistance of experts, investigators and mitigation specialists in developing mitigating evidence. This proposal would not alter the present constitutional standards for providing effective assistance. These Guidelines have been relied on by the courts in determining whether counsel has performed in a competent way, so adoption of these standards will provide more clear guidance to the defense, prosecuting attorneys, and the courts, as to what is expected and needs to be done to ensure a defendant receives effective representation. This will in turn protect the innocent, ensure more reliable and appropriate decisions, and avoid costly retrials.

    Full Text of Recommendation: Adopt the Supplementary Guidelines for the Mitigation Function of Defense Teams in death penalty cases.

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

    Defense Services 19-0 Read More

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

    OTSE Priority Recommendation
    Defense Services Subcommittee
    Legislation Required
    Passed Unanimously

    This provision would create a fund that would pay both defense and prosecution fees and expenses in all phases of capital litigation.

    Full Text of Recommendation: Enact and fund a capital litigation fund to pay for all costs, fees, and expenses.

    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.

    Defense Services 20-0 Read More

    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.

    Defense Services Subcommittee
    Legislation Required
    Passed Unanimously

    Full Text of Recommendation: It is specifically recommended that increased funding be provided to the Office of the Ohio Public Defender, by statute, to allow for additional hiring and training of qualified Capital Case defense attorneys, who could be made available to all Ohio counties, except in circumstances where a conflict of interest occurs, at which time a separate list of prospective appointed counsel would be provided.

    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.

    Defense Services 13-3 Read More

    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.

    Defense Services Subcommittee
    Legislation Required
    Supreme Court Action Required

    The Ohio Supreme Court/OSBA Joint Task Force agreed that the best quality and most cost-effective system would be to have a statewide public defender office that provided representation in all phases of capital cases, except when a conflict of interest arose (for instance, where co-defendants were blaming one another for the crime), in which case a qualified private counsel would be appointed to handle that (co-) defendant’s case.

    Full Text of Recommendation: Ohio legislature and Ohio Supreme Court implement and fund a statewide public defender system for representation of indigent persons in all capital cases for trials, appeals, post-conviction and clemency except where a conflict of interest arises; in cases of conflicts of interest, qualified Rule 20 counsel shall then be appointed.

    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.

    Defense Services 16-0 Read More

    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.

    Defense Services Subcommittee
    Legislation Required
    Passed Unanimously

    Full Text of Recommendation: Enact legislation to provide that private defense counsel appointed to represent death eligible defendants or those sentenced to death are equally paid throughout the state regardless of the location of the offense.

    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.

    Defense Services 12-6 Read More

    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.

    Defense Services Subcommittee
    Legislation Required

    This recommendation would provide much more assurance against mistaken executions. It would also have the benefit of providing objective criteria for prosecuting capitally that should give the prosecutor, media, and the victim’s family a clear understanding of when death could be sought. It may in turn reduce the pressures that lead to tunnel vision in investigations, and mistaken prosecutions/convictions. Nationally, 144 death row inmates have been exonerated and released from prison since 1973. Serious questions have been raised whether one or more innocent persons have been executed (see Cameron Todd Willingham case in Texas). Ohio’s death penalty system has repeatedly erred, and is not immune from these concerns. Six persons on Ohio’s death row have been exonerated. Together these innocent men served 102 years in prison before they were released. In addition, serious questions of possible innocence led Ohio’s Governor to remove another inmate from death row and reduce the inmate’s sentence to life imprisonment. Several years ago, the Ohio Innocence Project joined with prosecuting and defense lawyers to present legislation designed to enhance the reliability of police investigations. SB 77 was passed that required preservation of forensic evidence for DNA testing, sought to improve eyewitness identification techniques, and tried to encourage electronic recording of interrogations by allowing a rebuttable presumption that those interrogations that were recorded were voluntary and thus admissible. Convicting the innocent not only ruins one life, but endangers others as the guilty person has gone free.

    Full Text of Recommendation: Enact legislation that maintains that a death sentence cannot be considered or imposed unless the state has either: 1) biological evidence or DNA evidence that links the defendant to the act of murder; 2) a videotaped, voluntary interrogation and confession of the defendant to the murder, or 3) a video recording that conclusively links the defendant to the murder; or 4) other like factors as determined by the General Assembly.

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

    Defense Services 19-0 Read More

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

    Defense Services Subcommittee
    Legislation Required
    Passed Unanimously

    Snitches or informants often have an incentive to create evidence, doing so in return for a dismissal of charges or a reduction in sentence. Informants were involved in more than 15 percent of wrongful convictions overturned due to DNA. In 2005, the American Bar Association House of Delegates adopted the following resolution: “That the American Bar Association urges federal, state, local and territorial governments to reduce the risk of convicting the innocent, while increasing the likelihood of convicting the guilty, by ensuring that no prosecution should occur based solely upon uncorroborated jailhouse informant testimony.” Twenty-five states have adopted a similar requirement that accomplice testimony be corroborated for a conviction. (Background) Nationally, 144 death row inmates have been exonerated and released from prison since 1973. Serious questions have been raised whether one or more innocent persons have been executed (see Cameron Todd Willingham case in Texas). Ohio’s death penalty system has repeatedly erred, and is not immune from these concerns. Six persons on Ohio’s death row have been exonerated. Together these innocent men served 102 years in prison before they were released. In addition, serious questions of possible innocence led Ohio’s Governor to remove another inmate from death row and reduce the inmate’s sentence to life imprisonment. Several years ago, the Ohio Innocence Project joined with prosecuting and defense lawyers to present legislation designed to enhance the reliability of police investigations. SB 77 was passed that required preservation of forensic evidence for DNA testing, sought to improve eyewitness identification techniques, and tried to encourage electronic recording of interrogations by allowing a rebuttable presumption that those interrogations that were recorded were voluntary and thus admissible. Convicting the innocent not only ruins one life, but endangers others as the guilty person has gone free.

    Full Text of Recommendation: Enact legislation that does not permit a death sentence where the state relies solely on jailhouse informant testimony that is not independently corroborated at the guilt/innocence phase.

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

    Defense Services 19-0 Read More

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

    OTSE Priority Recommendation
    Defense Services Subcommittee
    Legislation Required
    Passed Unanimously

    Present victim and witness assistance programs operate within the prosecutor’s office and are often geared to the prosecution of the cases, though victims may need more forms of support and a lengthier period to help them deal with their loss. This proposal encourages the legislature to look further at how best to support families.

    Full Text of Recommendation: The legislature should study how best to support families of murder/homicide victims in the short and long term.

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

    Defense Services 11-7 Read More

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

    Defense Services Subcommittee
    Legislation Required

    A capital defendant is entitled to a jury trial, or may decide to waive (give up) the jury and be tried before a panel of three judges (a bench trial). Some defendants who have waived the jury have had their cases reversed due to serious errors in that trial level proceeding. There is presently no legislation to address whether the defendant’s retrial can be before a jury if the defendant wishes to do so. There is no reason to foreclose a defendant from exercising his customary right to a jury.

    Full Text of Recommendation: Enact legislation that allows a defendant to withdraw his or her wavier of a jury trial in either the guilt or penalty phase if either phase is reversed by a reviewing court.

    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.

    Read More

    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.

    Full Text of Recommendation: Amend Rule 20 of the Rules of Superintendence for Ohio Courts in the manner attached to the final recommendations.

    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.

    Defense Services 18-0 Read More

    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.

    Defense Services Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    In the interest of fair and timely resolution, and putting as much on the record as possible for transparency and assurance of due process, court clerks should be required to accept all properly presented motions for filing.

    Full Text of Recommendation: The Ohio Rules of Practice and Procedure shall be amended so that the properly presented motion must be accepted for filing for a ruling by the court in a death penalty case.

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

    Defense Services 18-0 Read More

    Amend the qualifications necessary for post-conviction counsel.

    Defense Services Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    Full Text of Recommendation: Amend Sup.R. 20, adding Section (E). Section (E) would read as follows: E. Post-Conviction Counsel. Post-conviction counsel shall satisfy all of the following qualifications: 1. Be admitted to the practice of law in Ohio or admitted to practice pro hac vice; 2. Have at least three years of civil or criminal litigation or post-conviction experience in Ohio; 3. Have specialized training, as approved by the committee, on subjects that will assist counsel in the post-conviction of cases in which the death penalty was imposed in the two years prior to making the application; 4. Have experience as counsel in the post-conviction proceedings of at least three felony convictions in the seven years prior to making the application.

    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).

    Post-Conviction 17-0 Read More

    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).

    Post-Conviction Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    As post-conviction is limited to issues that were not raised before, and most often rely on new facts, added time is needed for investigation and preparation of the petition. (It is worth noting that the average time the six exonerated innocent persons spent on Ohio’s death row is over 17 years, so rushing to complete the appellate and post-conviction process can lead to mistakes.)

    Full Text of Recommendation: That the time frame for filing a post-conviction motion be extended from one hundred eighty (180) days after the filing of the trial record to three hundred sixty five (365) after the filing of the trial record. Section 2953.21(A)(1)(c)(2) would read as follows: Except as otherwise provided in section 2953.23 of Revised Code, a petition under division (A)(1) of this section shall be filed no later than three hundred sixty-five (365) days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court. If no appeal is taken, except as otherwise provided in section 2953.23 of the Revised Code, the petition shall be filed no later than three hundred sixty five (365) days after the expiration of the time for filing the appeal.

    25. Judicial review and findings required regarding each claim.

    Post-Conviction 19-0 Read More

    Judicial review and findings required regarding each claim.

    Post-Conviction Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    This measure will help to assure a more thorough review of a petition.

    Full Text of Recommendation: The Judge hearing the case must state specifically why each claim was either denied or granted in the findings of fact and conclusions of law.

    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.

    Post-Conviction 19-0 Read More

    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.

    Post-Conviction Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    Full Text of Recommendation: 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.

    27. PCR petitions page limitations removed.

    Post-Conviction 14-3 Read More

    PCR petitions page limitations removed.

    Post-Conviction Subcommittee
    Supreme Court Action Required

    This measure will help to assure a more thorough review of a petition.

    Full Text of Recommendation: There shall be no page limits in death penalty cases in either the petition filed with the common pleas court or on direct appeal from the denials of such petition.

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

    Post-Conviction 13-3 Read More

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

    Post-Conviction Subcommittee
    Legislation Required

    The ABA Report called for more thorough review of claims in the state appellate courts and also in state post-conviction relief proceedings.

    Full Text of Recommendation: Amend R.C. 2953.21, as attached in Appendix C, to these recommendation to provide for depositions and subpoenas during discovery in post-conviction relief.

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

    Race & Ethnicity 12-2 Read More

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

    Race & Ethnicity Subcommittee
    Supreme Court Action Required

    The ABA Report stated: “In 1999, the Ohio Commission on Racial Fairness recognized that “[a] perpetrator is geometrically more likely to end up on death row if the homicide victim is white rather than black. The implication of race in this gross disparity is not simply explained away and demands thorough examination, analysis and study until a satisfactory explanation emerges which eliminates race as the cause for these widely divergent numbers.” Despite these statements, the State of Ohio has not further studied the issue of racial bias in capital sentencing or implemented reforms designed to help eliminate the impact of race on capital sentencing. The racial and geographic disparity study conducted as part of this assessment confirms the existence of racial bias in the State of Ohio’s capital system, finding that those who kill Whites are 3.8 times more likely to receive a death sentence than those who kill Blacks.”

    Full Text of Recommendation: Mandate through the Rule 20 committee that all attorneys who are practice capital litigation must take a certain number of CLE hours on this topic. Mandate the creation of and mandatory attendance for prosecutors who prosecute death penalty cases to attend training that educates them on how to protect against racial bias in the arrest, charging, and prosecution of death penalty cases. Mandate that Judges assigned to death penalty cases must have attend specialized training regarding racial bias in death cases and how to protect against it.Mandate that any judge who reasonably believes that any state actor has acted on the basis of race in a capital case be reported to the Office of Disciplinary Counselor to the appropriate supervisory authority, if not an attorney.

    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.

    Race & Ethnicity 12-2 Read More

    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.

    Race & Ethnicity Subcommittee
    Supreme Court Action Required

    The ABA Report stated: “In 1999, the Ohio Commission on Racial Fairness recognized that “[a] perpetrator is geometrically more likely to end up on death row if the homicide victim is white rather than black. The implication of race in this gross disparity is not simply explained away and demands thorough examination, analysis and study until a satisfactory explanation emerges which eliminates race as the cause for these widely divergent numbers.” Despite these statements, the State of Ohio has not further studied the issue of racial bias in capital sentencing or implemented reforms designed to help eliminate the impact of race on capital sentencing. The racial and geographic disparity study conducted as part of this assessment confirms the existence of racial bias in the State of Ohio’s capital system, finding that those who kill Whites are 3.8 times more likely to receive a death sentence than those who kill Blacks.”

    Full Text of Recommendation: Mandate that any judge who reasonably believes that any state actor has acted on the basis of race in a capital case be reported to the Office of Disciplinary Counselor to the appropriate supervisory authority, if not an attorney.

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

    Race & Ethnicity 13-1 Read More

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

    Race & Ethnicity Subcommittee
    Supreme Court Action Required

    The ABA Report stated: “In 1999, the Ohio Commission on Racial Fairness recognized that “[a] perpetrator is geometrically more likely to end up on death row if the homicide victim is white rather than black. The implication of race in this gross disparity is not simply explained away and demands thorough examination, analysis and study until a satisfactory explanation emerges which eliminates race as the cause for these widely divergent numbers.” Despite these statements, the State of Ohio has not further studied the issue of racial bias in capital sentencing or implemented reforms designed to help eliminate the impact of race on capital sentencing. The racial and geographic disparity study conducted as part of this assessment confirms the existence of racial bias in the State of Ohio’s capital system, finding that those who kill Whites are 3.8 times more likely to receive a death sentence than those who kill Blacks.”

    Full Text of Recommendation: Mandate through the Rule 20 committee that all Rule 20 approved trainings must include at least one hour of training regarding the development of discrimination claims in death penalty cases and trained to preserve Batson issues for appellate review.

    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.

    Race & Ethnicity 8-5 Read More

    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.

    Race & Ethnicity Subcommittee
    Supreme Court Action Required

    The Ohio Supreme Court Joint Task Force sought to put in place a number of measures to prevent the interference of racial bias in a trial. Removing actors in the trial, including the judge, who disrupt the fairness of the judicial process with racial bias is a crucial step toward a more just system.

    Full Text of Recommendation: Mandate that an attorney must seek the recusal of any judge where “a reasonable basis for concluding that the judge’s decision making could be affected by racially discriminatory factors” and should the judge not recuse, if the attorney still believes there is a reasonable basis for concluding that the judge’s decision making could be affected by racially discriminatory factors then the attorney shall file an affidavit of bias with the Chief Justice of the Ohio Supreme Court.

    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.

    Race & Ethnicity 12-2 Read More

    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.

    OTSE Priority Recommendation
    Race & Ethnicity Subcommittee
    Legislation Required

    Death can only be imposed when the jury (or the panel of three judges if the jury is waived) has found both aggravated murder and an aggravating circumstance or specification. One of the many specifications is killing during the course of committing or attempting to commit or fleeing immediately after committing certain felonies (the so-called felony-murder specification, see R.C. 2929.03(A)(7)). Based upon data showing that prosecutors and juries overwhelmingly do not find felony murder to be “the worst of the worst” murders (which death sentencing is to be reserved for), further finding that such specifications result in death verdicts 7% of the time or less when charged as a death penalty case, and further finding that removal of these specifications will reduce the race disparity of the death penalty, the Ohio Supreme Court Joint Task Force recommended to the legislature that the following specifications be removed from the statutes: Kidnapping, Rape, Aggravated Arson, Aggravated Robbery, and Aggravated Burglary (the R.C. 2929.04(A)(7) specification).

    Full Text of Recommendation: Based upon attached data showing that prosecutors and juries overwhelmingly do not find Felony Murder to be the worst of the worst murders, further finding that such specifications result in death verdicts 7% of the time or less when charged as a death penalty case, and further finding that removal of these specifications will reduce the race disparity of the death penalty , it should be recommended to the legislature that the following specifications be removed from the statutes: Kidnapping, Rape, Agg Arson, Agg Robbery, and Agg Burglarly.

    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.

    Race & Ethnicity 8-6 Read More

    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.

    Race & Ethnicity Subcommittee
    Legislation Required

    Having a local prosecutor’s decision to seek death reviewed by a committee of former county prosecutors appointed by the Governor and members of the Ohio Attorney General’s staff, would help assure that a county prosecutors’ individual idiosyncrasies or interpretations of the law are not creating unfair disparities from one county to another or possibly arbitrary or discriminatory decision-making. Federal prosecutors are required to follow such a policy, submitting their intent to seek death to the seasoned review of the U.S. Attorney General. Such a policy is needed here, given the disparities shown by race statistics above, and geography statistics below.

    Full Text of Recommendation: To address cross jurisdictional racial discrepancy it is recommended that Ohio create a Death Penalty charging committee at the Ohio Attorney General’s Office. It is recommended that the committee be made up of former county prosecutors appointed by the Governor and members of the Ohio Attorney General’s staff. County Prosecutors would submit cases they want to charge with death as a potential punishment. The Attorney General’s office would approve or disapprove of the charges paying particular attention to the race of the victim(s) and defendant(s).

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

    Race & Ethnicity 13-1 Read More

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

    OTSE Priority Recommendation
    Race & Ethnicity Subcommittee
    Legislation Required

    Like a housing or employment discrimination case that relies on statistical disparities to raise a challenge, a Racial Justice Act would allow the use of statistics to show a likelihood of race discrimination infecting a prosecution or decisions made during the prosecution, that would oblige the State to show there was no discrimination as there are race-neutral reasons that explain the decision-made. Present law forecloses looking at issues of race discrimination unless the defendant proves a state actor intentionally discriminated, which is nearly impossible to prove unless someone admits to discrimination, and presently statistics are not enough to raise a challenge or even get an opportunity to have access to information that may help prove discrimination occurred.

    Full Text of Recommendation: Enact legislation allowing for these types of claims to be raised and developed in State Court through a Racial Justice Act with such a claim being independent of whether the client has any other basis for filing in that court.

    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.

    Defense Services 12-2-1 Read More

    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.

    Defense Services Subcommittee
    Legislation Required

    Expanding the jury pool (who can be called for jury service) to include not simply all registered voters, but also all licensed driver citizens, should provide greater diversity on juries.

    Full Text of Recommendation: To ensure a more representative jury pool, enact legislation that requires every jurisdiction to create jury pools from voter lists of all registered voters and all licensed drivers who are US citizens rather than only the voter registration list.

    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.

    Defense Services 17-0 Read More

    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.

    Defense Services Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    Ohio also has a rule of criminal procedure concerning discovery. At the time of the ABA Report, discovery was fairly limited. That Criminal Rule 16 has since been amended to provide for greater discovery in all criminal cases. But it is still not the “open file” discovery that several states require in capital cases. Many prosecuting attorneys have a policy of providing such “open discovery” whereby everything they are provided by the police they provide to defense counsel. This helps to avoid a later claim of prosecutorial misconduct in the discovery phase of the prosecution, and also facilitates reliable decision-making. Prosecutors following a general “open file” policy are still able to refrain from turning over information that needs to be withheld to protect persons from harm, under Crim. 16 (D) upon a proper showing. The Ohio Supreme Court/OSBA Joint Task Force essentially recommends such an open file policy in capital cases, with the availability of such protective orders, and excluding (as usual) work-product (strategies of counsel), information the defense has that is incriminating or consists of communications between the attorney and client to obtain/provide legal advice.

    Full Text of Recommendation: Enact a court rule that shall allow prosecutors and defendant’s attorneys in death penalty cases full and complete access to all documents, statements, writings, photographs, recordings, evidence, reports or any other file materials in possession of the state, any agent or agency of the state, or any police agency involved in a case, or in the possession of the defendant’s attorneys which is known to exist or which, with due diligence, can be determined to exist and to allow the attorneys to inspect, test, examine, photograph or copy the same. This shall not be construed to require the disclosure of attorney work product or privileged matters, not to the disclosure of inculpatory information possessed by the defendant’s attorneys described in Crim.R. 16(H)(3), nor to materials protected by Crim.R. 16.

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

    Defense Services 10-9 Read More

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

    Defense Services Subcommittee
    Legislation Required

    Currently, when a prosecutor presents a case to the grand jury to initiate a criminal prosecution by indictment he has no duty to present information supporting the defendant’s innocence that he knows about – so the grand jury only considers evidence supporting guilt, and may indict innocent persons, risking erroneous convictions, wasting precious resources, and allowing the actually guilty party to continue committing crimes. Federal prosecutors are required to present such evidence supporting innocence to federal grand juries, and some other states require this.

    Full Text of Recommendation: Enact legislation that will require a prosecutor to present to the Grand Jury available exculpatory evidence of which the prosecutor is aware.

    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.

    Judicial Role 10-5 Read More

    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.

    Judicial Role Subcommittee
    Supreme Court Action Required

    The ABA Report recommended that the State of Ohio more vigorously enforce the Brady constitutional and ethical rules that require the prosecutors to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt (show innocence) of the accused or mitigates punishment (would call for a lesser sentence). This provision attempts to document compliance with these dictates, to assure compliance has been given and avoid future litigation about this point. This proposal also seeks to document general discovery compliance. To level the playing field and assure reliable outcomes, due process requires that if an accused does not have funds to pay an expert who is reasonably necessary for the defense to have a fair opportunity to defend the case, defense counsel may ask the court to appoint such an expert to assist him, and the expert will be paid by the state that is prosecuting him. This proposal assures that such requests for an expert are made on the record, but ex parte, meaning that the prosecutor is not present or made aware of this request. Like the prosecutor, who does not need to run their plans to seek investigative or expert assistance by the defendant first, the defense should have the ability to direct the investigation of their case as is reasonably necessary to a fair trial. At the same time, the trial and appellate courts will have a record of what expert request(s) have been been granted or denied, and the reasons for such grant or denial, to assure the defendant’s due process right has been complied with.

    Full Text of Recommendation: Adoption of an order requiring implementation of mandatory pre-trial conferences and appropriate Judicial College education to emphasize the necessity for conducting such conferences, all of which must be on the record, to begin at the earliest stages of the case and to address issues pertaining to discovery, Brady disclosures, and appointment of experts. After inquiry by Court as to status of discovery, counsel for state and defendant shall be ordered to declare their compliance with all discovery obligations and the State shall affirmatively assert disclosure of all exculpatory matters pursuant to Brady.

    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.

    Read More

    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.

    Full Text of Recommendation: 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.

    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.

    Prosecutorial Issues 12-6 Read More

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

    Prosecutorial Issues Subcommittee

    This proposal encourages attention to practices/procedures that will enhance the fairness and timely resolution of cases.

    Full Text of Recommendation: The Task Force should pass a resolution urging all parties involved to work on procedures to remove any impediments to a fair and timely resolution of death penalty cases in the Ohio courts.

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

    Clemency 15-0 Read More

    Clemency proceedings should include a formalized right to counsel.

    Clemency Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    The clemency process is a critical phase of the capital litigation system. The Governor makes a decision about whether to commute (reduce to life) the death sentence, and historically, the Governor is the one person who can fill in the gaps in the law, so to speak. Gaps do arise, when justice cannot be done, because reviewing courts are often foreclosed, due to technical rules of procedure, from doing justice. The Governor can review new evidence, evidence of innocence, issues that were not properly preserved at trial or on appeal, mental illness or disability, level of involvement in the crime, wishes of the victim’s family, or the disproportionality of punishment, or apply changes in the law that may show the defendant is deserving of a lesser conviction or sentence — all of which to one extent or another, a reviewing court may not be able to do. This proposal will help to bring about a more transparent, thorough, reliable, and fair determination on issues of clemency.

    Full Text of Recommendation: There should be a codification of the right to have counsel present at the clemency hearing.

    43. During clemency proceedings, the proceedings and interview of inmate are to be recorded; inmate’s counsel allowed to counsel the client during the interview; Board must reveal all information it considers in reaching its decision; inmate’s master file is to be released to inmate’s counsel 6 months before hearing; 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; adequate funding for a mental health expert if needed and for private counsel representation.

    Clemency Read More

    During clemency proceedings, the proceedings and interview of inmate are to be recorded; inmate’s counsel allowed to counsel the client during the interview; Board must reveal all information it considers in reaching its decision; inmate’s master file is to be released to inmate’s counsel 6 months before hearing; 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; adequate funding for a mental health expert if needed and for private counsel representation.

    Defense Services Subcommittee
    Supreme Court Action Required

    The clemency process is a critical phase of the capital litigation system. The Governor makes a decision about whether to commute (reduce to life) the death sentence, and historically, the Governor is the one person who can fill in the gaps in the law, so to speak. Gaps do arise, when justice cannot be done, because reviewing courts are often foreclosed, due to technical rules of procedure, from doing justice. The Governor can review new evidence, evidence of innocence, issues that were not properly preserved at trial or on appeal, mental illness or disability, level of involvement in the crime, wishes of the victim’s family, or the disproportionality of punishment, or apply changes in the law that may show the defendant is deserving of a lesser conviction or sentence — all of which to one extent or another, a reviewing court may not be able to do. These proposals will help to bring about a more transparent, thorough, reliable, and fair determination on issues of clemency.

    Full Text of Recommendation: Enact legislation or administrative regulation to provide that death penalty clemency proceedings in Ohio include: a. The parole board hearing must be recorded by audio, video or court stenographer and be a public record; b. The interview of the condemned inmate must be recorded by audio, video or court stenographer and be a public record; c. The inmate’s counsel must be allowed to counsel the client in the interview; d. The parole board must reveal to counsel for the defendant and the state all documents, witnesses and information it will consider in reaching its decision; e. The inmate’s master file must be released to his/her counsel at least six months before the parole board hearing; f. Counsel for inmate and state must disclose and exchange all information to be relied upon at the parole hearing at least 30 days before the hearing with attorney certification and a continuing duty to disclose; g. Identify a funding mechanism, such as a capital litigation fund, for inmate’s mental health expert of state expert so that an expert can be hired in a timely manner for the parole board hearing; h. The legislature should ensure adequate funding, such as capital litigation fund, for private counsel who prepare for and represent a condemned inmate at the parole board hearing.

    44. Improve jury instructions by conducting an annual review.

    Defense Services 16-0 Read More

    Improve jury instructions by conducting an annual review.

    Defense Services Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    Jury instructions require frequent updating and improvement. Research has long indicated that capital jurors commonly have difficulty understanding jury instructions. In every one of the fourteen states studied by the National Science Foundation’s Capital Jury Project a significant percentage of actual capital jurors had failed to follow the constitutional parameters of death penalty law, due to this lack of understanding. One of these parameters in Ohio is the jury can only impose death if they find the aggravating factors outweigh the mitigating factors beyond a reasonable doubt — but jurors often do not understand the meaning of aggravating and mitigating factors and how to weigh them. The standard Ohio Jury Instruction 503.011(12) cautions that weighing aggravating and mitigating circumstances as not being simply about the number of witnesses or exhibits presented. The ABA Joint Task Force Report advised a similar caution about not simply counting up the number of mitigating and aggravating factors as a way to determine if the aggravators outweigh the mitigators. The jury must also be made aware that it has the option of extending mercy arising from the evidence, ie. arising from the mitigating factors in the case. In 2004 the Supreme Court of Ohio Joint Task Force on Jury Service made a similar recommendation to use plain English instructions, based on its own survey of jurors that indicated that a significant portion had difficulty understanding legal terminology. Present Ohio Rule of Criminal Procedure 30(A) permits, but does not require, the jury to receive a written copy or recording of jury instructions for use in deliberations; and an Ohio statute says the final jury charge must be reduced to writing “if either party requests it.” Making written jury instructions automatic would make trial practice consistent across the state. The Ohio Supreme Court’s Joint Task Force on Jury Service previously recommended this to increase jury comprehension, reduce the questions jurors have during their deliberations, and make their deliberations more efficient.

    Full Text of Recommendation: The Ohio Judicial Conference shall, on an annual basis, work with attorneys and judges, to review and revise as necessary the jury instructions in death penalty cases to ensure that jurors understand applicable law. In particular, the OJC shall request, on an annual basis, input from the Ohio Prosecuting Attorney’s Association, the Ohio Association of Criminal Defense Lawyers, the Ohio Public Defender, and the members of the Ohio Judicial Conference.

    45. Use “plain English” instructions.

    Defense Services 14-1-1 Read More

    Use “plain English” instructions.

    Defense Services Subcommittee
    Legislation Required

    Jury instructions require frequent updating and improvement. Research has long indicated that capital jurors commonly have difficulty understanding jury instructions. In every one of the fourteen states studied by the National Science Foundation’s Capital Jury Project a significant percentage of actual capital jurors had failed to follow the constitutional parameters of death penalty law, due to this lack of understanding. One of these parameters in Ohio is the jury can only impose death if they find the aggravating factors outweigh the mitigating factors beyond a reasonable doubt — but jurors often do not understand the meaning of aggravating and mitigating factors and how to weigh them. The standard Ohio Jury Instruction 503.011(12) cautions that weighing aggravating and mitigating circumstances as not being simply about the number of witnesses or exhibits presented. The ABA Joint Task Force Report advised a similar caution about not simply counting up the number of mitigating and aggravating factors as a way to determine if the aggravators outweigh the mitigators. The jury must also be made aware that it has the option of extending mercy arising from the evidence, ie. arising from the mitigating factors in the case. In 2004 the Supreme Court of Ohio Joint Task Force on Jury Service made a similar recommendation to use plain English instructions, based on its own survey of jurors that indicated that a significant portion had difficulty understanding legal terminology. Present Ohio Rule of Criminal Procedure 30(A) permits, but does not require, the jury to receive a written copy or recording of jury instructions for use in deliberations; and an Ohio statute says the final jury charge must be reduced to writing “if either party requests it.” Making written jury instructions automatic would make trial practice consistent across the state. The Ohio Supreme Court’s Joint Task Force on Jury Service previously recommended this to increase jury comprehension, reduce the questions jurors have during their deliberations, and make their deliberations more efficient.

    Full Text of Recommendation: The Ohio Judicial Conference shall review and revise as necessary the Ohio Jury Instructions to institute the use of “plain English,” and “plain English,” shall be used throughout capital trials.

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

    Defense Services 16-0 Read More

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

    Defense Services Subcommittee
    Legislation Required
    Passed Unanimously

    Jury instructions require frequent updating and improvement. Research has long indicated that capital jurors commonly have difficulty understanding jury instructions. In every one of the fourteen states studied by the National Science Foundation’s Capital Jury Project a significant percentage of actual capital jurors had failed to follow the constitutional parameters of death penalty law, due to this lack of understanding. One of these parameters in Ohio is the jury can only impose death if they find the aggravating factors outweigh the mitigating factors beyond a reasonable doubt — but jurors often do not understand the meaning of aggravating and mitigating factors and how to weigh them. The standard Ohio Jury Instruction 503.011(12) cautions that weighing aggravating and mitigating circumstances as not being simply about the number of witnesses or exhibits presented. The ABA Joint Task Force Report advised a similar caution about not simply counting up the number of mitigating and aggravating factors as a way to determine if the aggravators outweigh the mitigators. The jury must also be made aware that it has the option of extending mercy arising from the evidence, ie. arising from the mitigating factors in the case. In 2004 the Supreme Court of Ohio Joint Task Force on Jury Service made a similar recommendation to use plain English instructions, based on its own survey of jurors that indicated that a significant portion had difficulty understanding legal terminology. Present Ohio Rule of Criminal Procedure 30(A) permits, but does not require, the jury to receive a written copy or recording of jury instructions for use in deliberations; and an Ohio statute says the final jury charge must be reduced to writing “if either party requests it.” Making written jury instructions automatic would make trial practice consistent across the state. The Ohio Supreme Court’s Joint Task Force on Jury Service previously recommended this to increase jury comprehension, reduce the questions jurors have during their deliberations, and make their deliberations more efficient.

    Full Text of Recommendation: In capital cases, jurors shall receive written copies of “court instructions” (the judge’s entire oral charge) to consult while the court is instructing them and while conducting deliberations.

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

    Post-Conviction 10-8 Read More

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

    Defense Services Subcommittee
    Supreme Court Action Required

    Jury instructions require frequent updating and improvement. Research has long indicated that capital jurors commonly have difficulty understanding jury instructions. In every one of the fourteen states studied by the National Science Foundation’s Capital Jury Project a significant percentage of actual capital jurors had failed to follow the constitutional parameters of death penalty law, due to this lack of understanding. The jury must also be made aware that it has the option of extending mercy arising from the evidence, ie. arising from the mitigating factors in the case.

    Full Text of Recommendation: The Ohio Judicial Conference shall study the Ohio Jury Instructions to make clear that a jury must always be given the option of extending mercy that arises from the evidence as cited in Justice Scalia’s dissent in Morgan v. Illinois, 504 U.S. 719, 751 citing Woodson v. North Carolina, 428 U.S. 303-305

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

    Read More

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

    Defense Services Subcommittee
    Legislation Required

    Jury instructions require frequent updating and improvement. Research has long indicated that capital jurors commonly have difficulty understanding jury instructions. In every one of the fourteen states studied by the National Science Foundation’s Capital Jury Project a significant percentage of actual capital jurors had failed to follow the constitutional parameters of death penalty law, due to this lack of understanding. One of these parameters in Ohio is the jury can only impose death if they find the aggravating factors outweigh the mitigating factors beyond a reasonable doubt — but jurors often do not understand the meaning of aggravating and mitigating factors and how to weigh them. The standard Ohio Jury Instruction 503.011(12) cautions that weighing aggravating and mitigating circumstances as not being simply about the number of witnesses or exhibits presented. The ABA Joint Task Force Report advised a similar caution about not simply counting up the number of mitigating and aggravating factors as a way to determine if the aggravators outweigh the mitigators.

    Full Text of Recommendation: The Ohio Judicial Conference shall ensure the Ohio Jury Instructions make clear the weighing process for considering aggravating circumstances and mitigating factors should not be conducted by determining whether there are a greater number of aggravating circumstances than mitigating factors.

    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.

    Judicial Role 21-0 Read More

    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.

    Judicial Role Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    Presently, there is no requirement that counsel who is retained (hired by the defendant or family or friends) have specialized training in the defense of capital cases, though retained counsel must also be competent and effective or a case will be overturned. This proposal requires that training, and would also expand and enhance training for appointed counsel and judges handling capital cases.

    Full Text of Recommendation: Implementation of enhanced mandatory, educational and minimum experience and/or certification requirements for all participating legal counsel (appointed and retained) and all Ohio Judges (including Common Pleas, Appellate and Supreme Court) to allow for their participation in a Capital Case. The Ohio Judicial College could be utilized as the vehicle to implement the mandatory educational requirements for Judges. Certain minimum standards for the appointment and performance of legal counsel (appointed and retained) in Capital Cases should be set forth in the Rule and could, in exceptional circumstances, be waived, with the consent of the Ohio Supreme Court, if it is determined that the attorney’s ability or the Judge’s qualification otherwise exceeds the standards required by the Rule. (The adoption of this Rule would require some amendment or modification to Sup. R. 20.)

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

    Judicial Role 17-4 Read More

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

    Judicial Role Subcommittee
    Supreme Court Action Required

    Full Text of Recommendation: Implementation of educational guidance for Presiding Judges as to when and how to intervene (procedure to follow) in situations of potential ineffective lawyering. Additional guidance should also be emphasized to assure effective utilization of the Recusal Process by Participating Legal Counsel, when incurring issues of preconceived opinions or otherwise prejudicial positions of Trial Judges. (Committee Note: For clarification, the educational guidance would highlight procedures for recognizing these issues in such a way that the Trial Court would not damage or undermine the client’s confidence in his or her legal counsel. However, the Committee also recognizes that if ineffective assistance of counsel is found, the Court has a duty to step in and address the issue.)

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

    Judicial Role 14-5 Read More

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

    Judicial Role Subcommittee
    Supreme Court Action Required

    Full Text of Recommendation: Adoption of an Order directing that a presiding Trial Judge, or the Administrative Judge, in conformity with Sup. R. 20, is the appropriate authority to appoint legal counsel in a Capital Case.

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

    Judicial Role 13-5 Read More

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

    Defense Services Subcommittee
    Supreme Court Action Required

    Full Text of Recommendation: Adoption of an Order directing the Trial Judge is the appropriate authority for the appointment of experts for indigent defendants. The Order further provides that the decision pertaining to the appointment of experts shall be made, on the record, at one of the prescribed Pre-Trial Conferences. If Defense counsel requests, the demand for appointment of the expert shall be made in-camera ex parte, and the Order concerning the appointment shall be under seal. Upon establishing counsels’ respective compliance with discovery obligations, the question of the appointment of experts (including determination of projected expert fees based upon analyses of expert’s time to be applied to the case as well as consideration of incremental payment of expert fees as case progresses) would be decided by the Court, which decision would be subject to immediate appeal, under seal, to the appropriate Court of Appeals. The trial court judge shall make written findings as to the basis for any denial. Although concerns have been raised as to the ability of the Appellate Court to provide the anticipated, necessary expedited hearing within a reasonable time-frame, the Committee suggests that this issue be elevated to the status of Final Appealable Order and that the necessary expedited appellate process be spelled out in the Statute.

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

    Judicial Role 20-0 Read More

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

    Judicial Role Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    The Ohio Supreme Court/OSBA Joint Task Force agreed that the practice throughout the state should be uniform regarding selecting a lawyer for an indigent person, the compensation to be given to that lawyer, and the reimbursement of his expenses for investigators and experts needed to defend the case.

    Full Text of Recommendation: In addition, the Committee recommends that the Supreme Court should take the lead to adopt a uniform process for the selection of indigent counsel in Capital Cases, including the establishment of a uniform fee and expense schedule, all of which would be included in the proposed Criminal Rule for Capital Cases.

    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.

    Judicial Role 21-0 Read More

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

    Judicial Role Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    The Ohio Supreme Court/OSBA Joint Task Force agreed that the practice throughout the state should be uniform regarding selecting a lawyer for an indigent person, the compensation to be given to that lawyer, and the reimbursement of his expenses for investigators and experts needed to defend the case.

    Full Text of Recommendation: In the event the Task Force would recommend the present process of appointment of indigent counsel by the Judiciary, the main objective should always be to assure the best educationally and experienced-qualified candidate, who is available (within the county or outside the county), and who is otherwise willing to take on the responsibilities associated with the case for an appropriate fee and accompanying expenses. A uniform fee schedule for such services across the State of Ohio must be a necessary consideration to assure the equal protection of enhanced due process for each County in the State.

    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.

    Judicial Role 16-0 Read More

    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.

    Juducial Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    Putting more information on the record during pre-trial and trial proceedings may provide less need for post-conviction proceedings, and/or a more clear basis for relief.

    Full Text of Recommendation: Embodiment of reporting standards to provide complete transparency of record, including requirements to ensure better record-keeping by the trial judge and the provision of additional, detailed resource information necessary to assure strict compliance with due process, which information shall be submitted to the Supreme Court upon completion of the case. Such resource information may include unique Constitutional issues, unique evidentiary issues, significant motions, plea rationale, pre-sentence investigation, and any additional information required by Rule 20 Committee or Supreme Court. Additional types of resource information could be developed as part of mandated educational process conducted by the Ohio Judicial College.

    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

    Judicial Role 16-0 Read More

    Asks the Supreme Court of Ohio and Ohio Judicial College to formally decide to what extent the ABA guidelines should be applied for capital defense counsel; namely, if they should simply be guidelines or if they should be strictly enforced. The Court should also decide the mechanism by which these guidelines are enforced (should they decide on that option) due to the number and complexity of the ABA guidelines.

    Judicial Role Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    Full Text of Recommendation: The Joint Task Force believes that some of the recommendations above could be accomplished by the adoption of a separate Criminal Rule for Capital Cases. The Joint Task Force recommends that such a rule be adopted and 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.

    Law Enforcement Identifications and Interrogations

    Recommendation Subcommittee Task Force Vote

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

    Law Enforcement 13-5 Read More

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

    Law Enforcement Subcommittee
    Legislation Required

    False confessions were present in 8 of 86 death row exonerations, and in 25% of DNA exonerations innocent defendants made incriminating statements or pled guilty to a crime they did not commit. Police interrogation techniques may bring to bear external influences inducing statements that are not true. Recording these interrogations can reveal pressures and other factors that may suggest a confession should not be trusted. Under present SB 77 law in Ohio, some incentive to record confessions is present, as when an interrogation is recorded, the person making the statements has the burden of proving that any statements made were not voluntary and thus inadmissible at trial. But there is no penalty against the law enforcement agency if the law enforcement officer fails to electronically record a custodial interrogation as required. Fifteen states and the District of Columbia presently require that custodial interrogations be audio or videotaped to be admissible in court against the accused. Although some Joint Task Force members believe confessions should not be admissible at all if not recorded, a majority of the Joint Task Force recommended that unrecorded statements made during an interrogation should be presumed involuntary and inadmissible (thus shifting the burden from the defense to the prosecution to admit the statements when not recorded).

    Full Text of Recommendation: Any in custody interrogation, as defined by Miranda v. Arizona, shall be electronically recorded. If the interrogation is not electronically recorded, statements made during the interrogation are presumed involuntary.

    Proportionality

    Recommendation Subcommittee Task Force Vote

    1. 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.

    Defense Services 10-7 Read More

    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.

    Defense Services Subcommittee
    Legislation Required

    This provision will require in future cases that the Court’s review include the universe of cases that started as capitally-charged cases and that ended in life or other sentences. To reduce the risk of arbitrary capital charges and possible discrimination based on race or ethnicity or other factor, in the future data will be collected about all cases that could have been capitally-charged but were not. The ABA Joint Task Force recommended strengthening the proportionality review conducted by the Ohio Supreme Court when it hears a capital appeal. The Ohio statute R.C. 2929.05 requires the Court to determine whether the death sentence in the case before them on appeal is excessive or disproportionate to the penalty imposed on in similar cases, and if so, to reverse because the death penalty is inappropriate. However, the Ohio Supreme Court has never found a death sentence disproportionate, and its ability to do so is undermined by the fact that it has not compared life-sentence cases, though such cases were intended to be considered by the legislature, which had ordered that the Court collect the opinions written by trial court judges when a life sentence was imposed, ie. The judge’s explanations why the jury or panel of judges found the aggravating factors did not outweigh the mitigating circumstances. Without comparing these life sentence cases, the Court only saw other death cases and simply wound up pointing to other cases where death had been imposed with these aggravating factors present. Since most cases now end in a life sentence, this is like comparing only other apples, when the apples were to be compared with the oranges. The Court cannot hope to identify the inappropriate, arbitrary, and/or aberrant death sentences that should be reversed and modified to life as the legislature intended, if they are only considering other death sentences.

    Full Text of Recommendation: Enact legislation to require prospective proportionality review in death penalty cases to include cases where the death penalty was charged in the indictment or information but not imposed.

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

    Disparity 15-1 Read More

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

    Disparity Subcommittee
    Supreme Court Action Required

    To reduce the risk of arbitrary capital charges and possible discrimination based on race or ethnicity or other factor, in the future data will be collected about all cases that could have been capitally-charged but were not.

    Full Text of Recommendation: The Supreme Court of Ohio by court rule should mandate that, prospectively, all death eligible homicides be reported to a central warehouse both at the charging stage and at the conclusion of the case at the trial level.

    3. 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.

    Judicial Role 15-1 Read More

    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.

    Judicial Role Subcommittee
    Legislation Required

    The present legislation provided for life opinions in cases that went to in to penalty phase deliberations and ended in a life sentence. This provision expands that to require that the prosecutor explain the rationale of a plea agreement when a capitally-charged case results by plea agreement in a penalty less than death. This again provides a basis for realistic comparisons of excessive or disproportionate sentences, since it is possible that similar cases may have been resolved by guilty plea and a lesser sentence.

    Full Text of Recommendation: Amend R.C. §2929.03 (F) to include the necessity for a Prosecutor’s rationale of a proposed plea agreement, on the record, for any indicted capital offense that results in a plea for a penalty less than death.

    Judicial Independence

    Recommendation Subcommittee Task Force Vote

    1. 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.

    Judicial Role 21-0 Read More

    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.

    Judicial Role Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    Presently, there is no requirement that counsel who is retained (hired by the defendant or family or friends) have specialized training in the defense of capital cases, though retained counsel must also be competent and effective or a case will be overturned. This proposal requires that training, and would also expand and enhance training for appointed counsel and judges handling capital cases.

    Full Text of Recommendation: Implementation of enhanced mandatory, educational and minimum experience and/or certification requirements for all participating legal counsel (appointed and retained) and all Ohio Judges (including Common Pleas, Appellate and Supreme Court) to allow for their participation in a Capital Case. The Ohio Judicial College could be utilized as the vehicle to implement the mandatory educational requirements for Judges. Certain minimum standards for the appointment and performance of legal counsel (appointed and retained) in Capital Cases should be set forth in the Rule and could, in exceptional circumstances, be waived, with the consent of the Ohio Supreme Court, if it is determined that the attorney’s ability or the Judge’s qualification otherwise exceeds the standards required by the Rule. (The adoption of this Rule would require some amendment or modification to Sup. R. 20.)

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

    Judicial Role 17-4 Read More

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

    Judicial Role Subcommittee
    Supreme Court Action Required

    Full Text of Recommendation: Implementation of educational guidance for Presiding Judges as to when and how to intervene (procedure to follow) in situations of potential ineffective lawyering. Additional guidance should also be emphasized to assure effective utilization of the Recusal Process by Participating Legal Counsel, when incurring issues of preconceived opinions or otherwise prejudicial positions of Trial Judges. (Committee Note: For clarification, the educational guidance would highlight procedures for recognizing these issues in such a way that the Trial Court would not damage or undermine the client’s confidence in his or her legal counsel. However, the Committee also recognizes that if ineffective assistance of counsel is found, the Court has a duty to step in and address the issue.)

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

    Judicial Role 14-5 Read More

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

    Judicial Role Subcommittee
    Supreme Court Action Required

    Full Text of Recommendation: Adoption of an Order directing that a presiding Trial Judge, or the Administrative Judge, in conformity with Sup. R. 20, is the appropriate authority to appoint legal counsel in a Capital Case.

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

    Judicial Role 20-0 Read More

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

    Judicial Role Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    The Ohio Supreme Court/OSBA Joint Task Force agreed that the practice throughout the state should be uniform regarding selecting a lawyer for an indigent person, the compensation to be given to that lawyer, and the reimbursement of his expenses for investigators and experts needed to defend the case.

    Full Text of Recommendation: In addition, the Committee recommends that the Supreme Court should take the lead to adopt a uniform process for the selection of indigent counsel in Capital Cases, including the establishment of a uniform fee and expense schedule, all of which would be included in the proposed Criminal Rule for Capital Cases.

    5. 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.

    Judicial Role 21-0 Read More

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

    Judicial Role Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    The Ohio Supreme Court/OSBA Joint Task Force agreed that the practice throughout the state should be uniform regarding selecting a lawyer for an indigent person, the compensation to be given to that lawyer, and the reimbursement of his expenses for investigators and experts needed to defend the case.

    Full Text of Recommendation: In the event the Task Force would recommend the present process of appointment of indigent counsel by the Judiciary, the main objective should always be to assure the best educationally and experienced-qualified candidate, who is available (within the county or outside the county), and who is otherwise willing to take on the responsibilities associated with the case for an appropriate fee and accompanying expenses. A uniform fee schedule for such services across the State of Ohio must be a necessary consideration to assure the equal protection of enhanced due process for each County in the State.

    6. 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.

    Judicial Role 16-0 Read More

    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.

    Juducial Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    Putting more information on the record during pre-trial and trial proceedings may provide less need for post-conviction proceedings, and/or a more clear basis for relief.

    Full Text of Recommendation: Embodiment of reporting standards to provide complete transparency of record, including requirements to ensure better record-keeping by the trial judge and the provision of additional, detailed resource information necessary to assure strict compliance with due process, which information shall be submitted to the Supreme Court upon completion of the case. Such resource information may include unique Constitutional issues, unique evidentiary issues, significant motions, plea rationale, pre-sentence investigation, and any additional information required by Rule 20 Committee or Supreme Court. Additional types of resource information could be developed as part of mandated educational process conducted by the Ohio Judicial College.

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

    Judicial Role 13-5 Read More

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

    Defense Services Subcommittee
    Supreme Court Action Required

    Full Text of Recommendation: Adoption of an Order directing the Trial Judge is the appropriate authority for the appointment of experts for indigent defendants. The Order further provides that the decision pertaining to the appointment of experts shall be made, on the record, at one of the prescribed Pre-Trial Conferences. If Defense counsel requests, the demand for appointment of the expert shall be made in-camera ex parte, and the Order concerning the appointment shall be under seal. Upon establishing counsels’ respective compliance with discovery obligations, the question of the appointment of experts (including determination of projected expert fees based upon analyses of expert’s time to be applied to the case as well as consideration of incremental payment of expert fees as case progresses) would be decided by the Court, which decision would be subject to immediate appeal, under seal, to the appropriate Court of Appeals. The trial court judge shall make written findings as to the basis for any denial. Although concerns have been raised as to the ability of the Appellate Court to provide the anticipated, necessary expedited hearing within a reasonable time-frame, the Committee suggests that this issue be elevated to the status of Final Appealable Order and that the necessary expedited appellate process be spelled out in the Statute.

    8. 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

    Judicial Role 16-0 Read More

    Asks the Supreme Court of Ohio and Ohio Judicial College to formally decide to what extent the ABA guidelines should be applied for capital defense counsel; namely, if they should simply be guidelines or if they should be strictly enforced. The Court should also decide the mechanism by which these guidelines are enforced (should they decide on that option) due to the number and complexity of the ABA guidelines.

    Judicial Role Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    Full Text of Recommendation: The Joint Task Force believes that some of the recommendations above could be accomplished by the adoption of a separate Criminal Rule for Capital Cases. The Joint Task Force recommends that such a rule be adopted and 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.

    State Post-Conviction Proceedings

    Recommendation Subcommittee Task Force Vote

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

    Defense Services 18-0 Read More

    Amend the qualifications necessary for post-conviction counsel.

    Defense Services Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    Full Text of Recommendation: Amend Sup.R. 20, adding Section (E). Section (E) would read as follows: E. Post-Conviction Counsel. Post-conviction counsel shall satisfy all of the following qualifications: 1. Be admitted to the practice of law in Ohio or admitted to practice pro hac vice; 2. Have at least three years of civil or criminal litigation or post-conviction experience in Ohio; 3. Have specialized training, as approved by the committee, on subjects that will assist counsel in the post-conviction of cases in which the death penalty was imposed in the two years prior to making the application; 4. Have experience as counsel in the post-conviction proceedings of at least three felony convictions in the seven years prior to making the application.

    2. 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).

    Post-Conviction 17-0 Read More

    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).

    Post-Conviction Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    As post-conviction is limited to issues that were not raised before, and most often rely on new facts, added time is needed for investigation and preparation of the petition. (It is worth noting that the average time the six exonerated innocent persons spent on Ohio’s death row is over 17 years, so rushing to complete the appellate and post-conviction process can lead to mistakes.)

    Full Text of Recommendation: That the time frame for filing a post-conviction motion be extended from one hundred eighty (180) days after the filing of the trial record to three hundred sixty five (365) after the filing of the trial record. Section 2953.21(A)(1)(c)(2) would read as follows: Except as otherwise provided in section 2953.23 of Revised Code, a petition under division (A)(1) of this section shall be filed no later than three hundred sixty-five (365) days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court. If no appeal is taken, except as otherwise provided in section 2953.23 of the Revised Code, the petition shall be filed no later than three hundred sixty five (365) days after the expiration of the time for filing the appeal.

    3. Judicial review and findings required regarding each claim.

    Post-Conviction 19-0 Read More

    Judicial review and findings required regarding each claim.

    Post-Conviction Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    This measure will help to assure a more thorough review of a petition.

    Full Text of Recommendation: The Judge hearing the case must state specifically why each claim was either denied or granted in the findings of fact and conclusions of law.

    4. 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.

    Post-Conviction 19-0 Read More

    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.

    Post-Conviction Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    Full Text of Recommendation: 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.

    5. PCR petitions page limitations removed.

    Post-Conviction 14-3 Read More

    PCR petitions page limitations removed.

    Post-Conviction Subcommittee
    Supreme Court Action Required

    This measure will help to assure a more thorough review of a petition.

    Full Text of Recommendation: There shall be no page limits in death penalty cases in either the petition filed with the common pleas court or on direct appeal from the denials of such petition.

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

    Post-Conviction 13-3 Read More

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

    Post-Conviction Subcommittee
    Legislation Required

    The ABA Report called for more thorough review of claims in the state appellate courts and also in state post-conviction relief proceedings.

    Full Text of Recommendation: Amend R.C. 2953.21, as attached in Exhibit B, to these recommendation to provide for depositions and subpoenas during discovery in post-conviction relief.

    Defense Services

    Recommendation Subcommittee Task Force Vote

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

    Defense Services 12-2 Read More

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

    Defense Services Subcommittee
    Legislation Required

    The ABA Guidelines put forth standards for an independent committee to assist in the appointment process and monitor counsel’s performance, and identify the duties of competent counsel at each phase of capital litigation. The Supplementary Guidelines address the investigation and presentation of mitigating evidence, clarifying that counsel must rely on the assistance of experts, investigators and mitigation specialists in developing mitigating evidence. This proposal would not alter the present constitutional standards for providing effective assistance. These Guidelines have been relied on by the courts in determining whether counsel has performed in a competent way, so adoption of these standards will provide more clear guidance to the defense, prosecuting attorneys, and the courts, as to what is expected and needs to be done to ensure a defendant receives effective representation. This will in turn protect the innocent, ensure more reliable and appropriate decisions, and avoid costly retrials.

    Full Text of Recommendation: Adopt the 2003 American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in death penalty cases.

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

    Defense Services 13-4 Read More

    Adopt the 2003 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 in Death Penalty Cases (and train counsel and judges on these).

    Defense Services Subcommittee
    Supreme Court Action Required

    The ABA Guidelines put forth standards for an independent committee to assist in the appointment process and monitor counsel’s performance, and identify the duties of competent counsel at each phase of capital litigation. The Supplementary Guidelines address the investigation and presentation of mitigating evidence, clarifying that counsel must rely on the assistance of experts, investigators and mitigation specialists in developing mitigating evidence. This proposal would not alter the present constitutional standards for providing effective assistance. These Guidelines have been relied on by the courts in determining whether counsel has performed in a competent way, so adoption of these standards will provide more clear guidance to the defense, prosecuting attorneys, and the courts, as to what is expected and needs to be done to ensure a defendant receives effective representation. This will in turn protect the innocent, ensure more reliable and appropriate decisions, and avoid costly retrials.

    Full Text of Recommendation: Adopt the Supplementary Guidelines for the Mitigation Function of Defense Teams in death penalty cases.

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

    Defense Services 19-0 Read More

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

    OTSE Priority Recommendation
    Defense Services Subcommittee
    Legislation Required
    Passed Unanimously

    This provision would create a fund that would pay both defense and prosecution fees and expenses in all phases of capital litigation.

    Full Text of Recommendation: Enact and fund a capital litigation fund to pay for all costs, fees, and expenses.

    4. 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.

    Defense Services 20-0 Read More

    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.

    Defense Services Subcommittee
    Legislation Required
    Passed Unanimously

    Full Text of Recommendation: It is specifically recommended that increased funding be provided to the Office of the Ohio Public Defender, by statute, to allow for additional hiring and training of qualified Capital Case defense attorneys, who could be made available to all Ohio counties, except in circumstances where a conflict of interest occurs, at which time a separate list of prospective appointed counsel would be provided.

    5. Implement and fund a state-wide 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.

    Defense Services 13-3 Read More

    Implement and fund a state-wide 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.

    Defense Services Subcommittee
    Legislation Required
    Supreme Court Action Required

    The Ohio Supreme Court/OSBA Joint Task Force agreed that the best quality and most cost-effective system would be to have a state-wide public defender office that provided representation in all phases of capital cases, except when a conflict of interest arose (for instance, where co-defendants were blaming one another for the crime), in which case a qualified private counsel would be appointed to handle that (co-) defendant’s case.

    Full Text of Recommendation: Ohio legislature and Ohio Supreme Court implement and fund a state-wide public defender system for representation of indigent persons in all capital cases for trials, appeals, post-conviction and clemency except where a conflict of interest arises; in cases of conflicts of interest, qualified Rule 20 counsel shall then be appointed.

    6. Implement and fund a state-wide 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.

    Defense Services 13-3 Read More

    Implement and fund a state-wide 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.

    Defense Services Subcommittee
    Legislation Required
    Supreme Court Action Required

    The Ohio Supreme Court/OSBA Joint Task Force agreed that the best quality and most cost-effective system would be to have a state-wide public defender office that provided representation in all phases of capital cases, except when a conflict of interest arose (for instance, where co-defendants were blaming one another for the crime), in which case a qualified private counsel would be appointed to handle that (co-) defendant’s case.

    Full Text of Recommendation: Ohio legislature and Ohio Supreme Court implement and fund a state-wide public defender system for representation of indigent persons in all capital cases for trials, appeals, post-conviction and clemency except where a conflict of interest arises; in cases of conflicts of interest, qualified Rule 20 counsel shall then be appointed.

    7. 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.

    Defense Services 16-0 Read More

    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.

    Defense Services Subcommittee
    Legislation Required
    Passed Unanimously

    Full Text of Recommendation: Enact legislation to provide that private defense counsel appointed to represent death eligible defendants or those sentenced to death are equally paid throughout the state regardless of the location of the offense.

    8. 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.

    Defense Services 12-6 Read More

    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.

    Defense Services Subcommittee
    Legislation Required

    This recommendation would provide much more assurance against mistaken executions. It would also have the benefit of providing objective criteria for prosecuting capitally that should give the prosecutor, media, and the victim’s family a clear understanding of when death could be sought. It may in turn reduce the pressures that lead to tunnel vision in investigations, and mistaken prosecutions/convictions. Nationally, 144 death row inmates have been exonerated and released from prison since 1973. Serious questions have been raised whether one or more innocent persons have been executed (see Cameron Todd Willingham case in Texas). Ohio’s death penalty system has repeatedly erred, and is not immune from these concerns. Six persons on Ohio’s death row have been exonerated. Together these innocent men served 102 years in prison before they were released. In addition, serious questions of possible innocence led Ohio’s Governor to remove another inmate from death row and reduce the inmate’s sentence to life imprisonment. Several years ago, the Ohio Innocence Project joined with prosecuting and defense lawyers to present legislation designed to enhance the reliability of police investigations. SB 77 was passed that required preservation of forensic evidence for DNA testing, sought to improve eyewitness identification techniques, and tried to encourage electronic recording of interrogations by allowing a rebuttable presumption that those interrogations that were recorded were voluntary and thus admissible. Convicting the innocent not only ruins one life, but endangers others as the guilty person has gone free.

    Full Text of Recommendation: Enact legislation that maintains that a death sentence cannot be considered or imposed unless the state has either: 1) biological evidence or DNA evidence that links the defendant to the act of murder; 2) a videotaped, voluntary interrogation and confession of the defendant to the murder, or 3) a video recording that conclusively links the defendant to the murder; or 4) other like factors as determined by the General Assembly.

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

    Defense Services 19-0 Read More

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

    Defense Services Subcommittee
    Legislation Required
    Passed Unanimously

    Snitches or informants often have an incentive to create evidence, doing so in return for a dismissal of charges or a reduction in sentence. Informants were involved in more than 15 percent of wrongful convictions overturned due to DNA. In 2005, the American Bar Association House of Delegates adopted the following resolution: “That the American Bar Association urges federal, state, local and territorial governments to reduce the risk of convicting the innocent, while increasing the likelihood of convicting the guilty, by ensuring that no prosecution should occur based solely upon uncorroborated jailhouse informant testimony.” Twenty-five states have adopted a similar requirement that accomplice testimony be corroborated for a conviction. (Background) Nationally, 144 death row inmates have been exonerated and released from prison since 1973. Serious questions have been raised whether one or more innocent persons have been executed (see Cameron Todd Willingham case in Texas). Ohio’s death penalty system has repeatedly erred, and is not immune from these concerns. Six persons on Ohio’s death row have been exonerated. Together these innocent men served 102 years in prison before they were released. In addition, serious questions of possible innocence led Ohio’s Governor to remove another inmate from death row and reduce the inmate’s sentence to life imprisonment. Several years ago, the Ohio Innocence Project joined with prosecuting and defense lawyers to present legislation designed to enhance the reliability of police investigations. SB 77 was passed that required preservation of forensic evidence for DNA testing, sought to improve eyewitness identification techniques, and tried to encourage electronic recording of interrogations by allowing a rebuttable presumption that those interrogations that were recorded were voluntary and thus admissible. Convicting the innocent not only ruins one life, but endangers others as the guilty person has gone free.

    Full Text of Recommendation: Enact legislation that does not permit a death sentence where the state relies solely on jailhouse informant testimony that is not independently corroborated at the guilt/innocence phase.

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

    Defense Services 19-0 Read More

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

    OTSE Priority Recommendation
    Defense Services Subcommittee
    Legislation Required
    Passed Unanimously

    Present victim and witness assistance programs operate within the prosecutor’s office and are often geared to the prosecution of the cases, though victims may need more forms of support and a lengthier period to help them deal with their loss. This proposal encourages the legislature to look further at how best to support families.

    Full Text of Recommendation: The legislature should study how best to support families of murder/homicide victims in the short and long term.

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

    Defense Services 11-7 Read More

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

    Defense Services Subcommittee
    Legislation Required

    A capital defendant is entitled to a jury trial, or may decide to waive (give up) the jury and be tried before a panel of three judges (a bench trial). Some defendants who have waived the jury have had their cases reversed due to serious errors in that trial level proceeding. There is presently no legislation to address whether the defendant’s retrial can be before a jury if the defendant wishes to do so. There is no reason to foreclose a defendant from exercising his customary right to a jury.

    Full Text of Recommendation: Enact legislation that allows a defendant to withdraw his or her wavier of a jury trial in either the guilt or penalty phase if either phase is reversed by a reviewing court.

    12. 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.

    Defense Services 18-0 Read More

    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.

    Defense Services Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    In the interest of fair and timely resolution, and putting as much on the record as possible for transparency and assurance of due process, court clerks should be required to accept all properly presented motions for filing.

    Full Text of Recommendation: The Ohio Rules of Practice and Procedure shall be amended so that the properly presented motion must be accepted for filing for a ruling by the court in a death penalty case.

    13. 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.

    Read More

    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.

    Full Text of Recommendation: Amend Rule 20 of the Rules of Superintendence for Ohio Courts in the manner attached to the final recommendations.

    Prosecutorial Professionalism

    Recommendation Subcommittee Task Force Vote

    1. 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.

    Defense Services 17-0 Read More

    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.

    Defense Services Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    Ohio also has a rule of criminal procedure concerning discovery. At the time of the ABA Report, discovery was fairly limited. That Criminal Rule 16 has since been amended to provide for greater discovery in all criminal cases. But it is still not the “open file” discovery that several states require in capital cases. Many prosecuting attorneys have a policy of providing such “open discovery” whereby everything they are provided by the police they provide to defense counsel. This helps to avoid a later claim of prosecutorial misconduct in the discovery phase of the prosecution, and also facilitates reliable decision-making. Prosecutors following a general “open file” policy are still able to refrain from turning over information that needs to be withheld to protect persons from harm, under Crim. 16 (D) upon a proper showing. The Ohio Supreme Court/OSBA Joint Task Force essentially recommends such an open file policy in capital cases, with the availability of such protective orders, and excluding (as usual) work-product (strategies of counsel), information the defense has that is incriminating or consists of communications between the attorney and client to obtain/provide legal advice.

    Full Text of Recommendation: Enact a court rule that shall allow prosecutors and defendant’s attorneys in death penalty cases full and complete access to all documents, statements, writings, photographs, recordings, evidence, reports or any other file materials in possession of the state, any agent or agency of the state, or any police agency involved in a case, or in the possession of the defendant’s attorneys which is known to exist or which, with due diligence, can be determined to exist and to allow the attorneys to inspect, test, examine, photograph or copy the same. This shall not be construed to require the disclosure of attorney work product or privileged matters, not to the disclosure of inculpatory information possessed by the defendant’s attorneys described in Crim.R. 16(H)(3), nor to materials protected by Crim.R. 16.

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

    Defense Services 10-9 Read More

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

    Defense Services Subcommittee
    Legislation Required

    Currently, when a prosecutor presents a case to the grand jury to initiate a criminal prosecution by indictment he has no duty to present information supporting the defendant’s innocence that he knows about – so the grand jury only considers evidence supporting guilt, and may indict innocent persons, risking erroneous convictions, wasting precious resources, and allowing the actually guilty party to continue committing crimes. Federal prosecutors are required to present such evidence supporting innocence to federal grand juries, and some other states require this.

    Full Text of Recommendation: Enact legislation that will require a prosecutor to present to the Grand Jury available exculpatory evidence of which the prosecutor is aware.

    3. 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.

    Judicial Role 10-5 Read More

    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.

    Judicial Role Subcommittee
    Supreme Court Action Required

    The ABA Report recommended that the State of Ohio more vigorously enforce the Brady constitutional and ethical rules that require the prosecutors to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt (show innocence) of the accused or mitigates punishment (would call for a lesser sentence). This provision attempts to document compliance with these dictates, to assure compliance has been given and avoid future litigation about this point. This proposal also seeks to document general discovery compliance. To level the playing field and assure reliable outcomes, due process requires that if an accused does not have funds to pay an expert who is reasonably necessary for the defense to have a fair opportunity to defend the case, defense counsel may ask the court to appoint such an expert to assist him, and the expert will be paid by the state that is prosecuting him. This proposal assures that such requests for an expert are made on the record, but ex parte, meaning that the prosecutor is not present or made aware of this request. Like the prosecutor, who does not need to run their plans to seek investigative or expert assistance by the defendant first, the defense should have the ability to direct the investigation of their case as is reasonably necessary to a fair trial. At the same time, the trial and appellate courts will have a record of what expert request(s) have been been granted or denied, and the reasons for such grant or denial, to assure the defendant’s due process right has been complied with.

    Full Text of Recommendation: Adoption of an order requiring implementation of mandatory pre-trial conferences and appropriate Judicial College education to emphasize the necessity for conducting such conferences, all of which must be on the record, to begin at the earliest stages of the case and to address issues pertaining to discovery, Brady disclosures, and appointment of experts. After inquiry by Court as to status of discovery, counsel for state and defendant shall be ordered to declare their compliance with all discovery obligations and the State shall affirmatively assert disclosure of all exculpatory matters pursuant to Brady.

    4. 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.

    Read More

    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.

    Full Text of Recommendation: 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.

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

    Prosecutorial Issues 12-6 Read More

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

    Prosecutorial Issues Subcommittee

    This proposal encourages attention to practices/procedures that will enhance the fairness and timely resolution of cases.

    Full Text of Recommendation: The Task Force should pass a resolution urging all parties involved to work on procedures to remove any impediments to a fair and timely resolution of death penalty cases in the Ohio courts.

    Clemency

    Recommendation Subcommittee Task Force Vote

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

    Clemency 15-0 Read More

    Clemency proceedings should include a formalized right to counsel.

    Clemency Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    The clemency process is a critical phase of the capital litigation system. The Governor makes a decision about whether to commute (reduce to life) the death sentence, and historically, the Governor is the one person who can fill in the gaps in the law, so to speak. Gaps do arise, when justice cannot be done, because reviewing courts are often foreclosed, due to technical rules of procedure, from doing justice. The Governor can review new evidence, evidence of innocence, issues that were not properly preserved at trial or on appeal, mental illness or disability, level of involvement in the crime, wishes of the victim’s family, or the disproportionality of punishment, or apply changes in the law that may show the defendant is deserving of a lesser conviction or sentence — all of which to one extent or another, a reviewing court may not be able to do. This proposal will help to bring about a more transparent, thorough, reliable, and fair determination on issues of clemency.

    Full Text of Recommendation: There should be a codification of the right to have counsel present at the clemency hearing.

    2. Clemency Proceedings should include – a formalized right to counsel; the proceedings and interview of inmate to be recorded; inmate’s counsel allowed to counsel the client during the interview; Board must reveal all information it considers in reaching its decision; inmate’s master file to be released to inmate’s counsel 6 months before hearing; state and inmate’s counsel disclose and exchange all information 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; adequate funding for a mental health expert if needed and for private counsel representation.

    Clemency 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 Read More

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

    Defense Services Subcommittee
    Legislation Required

    The clemency process is a critical phase of the capital litigation system. The Governor makes a decision about whether to commute (reduce to life) the death sentence, and historically, the Governor is the one person who can fill in the gaps in the law, so to speak. Gaps do arise, when justice cannot be done, because reviewing courts are often foreclosed, due to technical rules of procedure, from doing justice. The Governor can review new evidence, evidence of innocence, issues that were not properly preserved at trial or on appeal, mental illness or disability, level of involvement in the crime, wishes of the victim’s family, or the disproportionality of punishment, or apply changes in the law that may show the defendant is deserving of a lesser conviction or sentence — all of which to one extent or another, a reviewing court may not be able to do. These proposals will help to bring about a more transparent, thorough, reliable, and fair determination on issues of clemency.

    Full Text of Recommendation: Enact legislation or administrative regulation to provide that death penalty clemency proceedings in Ohio include: a. The parole board hearing must be recorded by audio, video or court stenographer and be a public record; b. The interview of the condemned inmate must be recorded by audio, video or court stenographer and be a public record; c. The inmate’s counsel must be allowed to counsel the client in the interview; d. The parole board must reveal to counsel for the defendant and the state all documents, witnesses and information it will consider in reaching its decision; e. The inmate’s master file must be released to his/her counsel at least six months before the parole board hearing; f. Counsel for inmate and state must disclose and exchange all information to be relied upon at the parole hearing at least 30 days before the hearing with attorney certification and a continuing duty to disclose; g. Identify a funding mechanism, such as a capital litigation fund, for inmate’s mental health expert of state expert so that an expert can be hired in a timely manner for the parole board hearing; h. The legislature should ensure adequate funding, such as capital litigation fund, for private counsel who prepare for and represent a condemned inmate at the parole board hearing.

    Racial and Ethnic Minorities

    Recommendation Subcommittee Task Force Vote

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

    Race & Ethnicity 12-2 Read More

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

    Race & Ethnicity Subcommittee
    Supreme Court Action Required

    The ABA Report stated: “In 1999, the Ohio Commission on Racial Fairness recognized that “[a] perpetrator is geometrically more likely to end up on death row if the homicide victim is white rather than black. The implication of race in this gross disparity is not simply explained away and demands thorough examination, analysis and study until a satisfactory explanation emerges which eliminates race as the cause for these widely divergent numbers.” Despite these statements, the State of Ohio has not further studied the issue of racial bias in capital sentencing or implemented reforms designed to help eliminate the impact of race on capital sentencing. The racial and geographic disparity study conducted as part of this assessment confirms the existence of racial bias in the State of Ohio’s capital system, finding that those who kill Whites are 3.8 times more likely to receive a death sentence than those who kill Blacks.”

    Full Text of Recommendation: Mandate through the Rule 20 committee that all attorneys who are practice capital litigation must take a certain number of CLE hours on this topic. Mandate the creation of and mandatory attendance for prosecutors who prosecute death penalty cases to attend training that educates them on how to protect against racial bias in the arrest, charging, and prosecution of death penalty cases. Mandate that Judges assigned to death penalty cases must have attend specialized training regarding racial bias in death cases and how to protect against it.Mandate that any judge who reasonably believes that any state actor has acted on the basis of race in a capital case be reported to the Office of Disciplinary Counselor to the appropriate supervisory authority, if not an attorney.

    2. 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.

    Race & Ethnicity 12-2 Read More

    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.

    Race & Ethnicity Subcommittee
    Supreme Court Action Required

    The ABA Report stated: “In 1999, the Ohio Commission on Racial Fairness recognized that “[a] perpetrator is geometrically more likely to end up on death row if the homicide victim is white rather than black. The implication of race in this gross disparity is not simply explained away and demands thorough examination, analysis and study until a satisfactory explanation emerges which eliminates race as the cause for these widely divergent numbers.” Despite these statements, the State of Ohio has not further studied the issue of racial bias in capital sentencing or implemented reforms designed to help eliminate the impact of race on capital sentencing. The racial and geographic disparity study conducted as part of this assessment confirms the existence of racial bias in the State of Ohio’s capital system, finding that those who kill Whites are 3.8 times more likely to receive a death sentence than those who kill Blacks.”

    Full Text of Recommendation: Mandate that any judge who reasonably believes that any state actor has acted on the basis of race in a capital case be reported to the Office of Disciplinary Counselor to the appropriate supervisory authority, if not an attorney.

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

    Race & Ethnicity 13-1 Read More

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

    Race & Ethnicity Subcommittee
    Supreme Court Action Required

    The ABA Report stated: “In 1999, the Ohio Commission on Racial Fairness recognized that “[a] perpetrator is geometrically more likely to end up on death row if the homicide victim is white rather than black. The implication of race in this gross disparity is not simply explained away and demands thorough examination, analysis and study until a satisfactory explanation emerges which eliminates race as the cause for these widely divergent numbers.” Despite these statements, the State of Ohio has not further studied the issue of racial bias in capital sentencing or implemented reforms designed to help eliminate the impact of race on capital sentencing. The racial and geographic disparity study conducted as part of this assessment confirms the existence of racial bias in the State of Ohio’s capital system, finding that those who kill Whites are 3.8 times more likely to receive a death sentence than those who kill Blacks.”

    Full Text of Recommendation: Mandate through the Rule 20 committee that all Rule 20 approved trainings must include at least one hour of training regarding the development of discrimination claims in death penalty cases and trained to preserve Batson issues for appellate review.

    4. 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.

    Race & Ethnicity 8-5 Read More

    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.

    Race & Ethnicity Subcommittee
    Supreme Court Action Required

    The Ohio Supreme Court Joint Task Force sought to put in place a number of measures to prevent the interference of racial bias in a trial. Removing actors in the trial, including the judge, who disrupt the fairness of the judicial process with racial bias is a crucial step toward a more just system.

    Full Text of Recommendation: Mandate that an attorney must seek the recusal of any judge where “a reasonable basis for concluding that the judge’s decision making could be affected by racially discriminatory factors” and should the judge not recuse, if the attorney still believes there is a reasonable basis for concluding that the judge’s decision making could be affected by racially discriminatory factors then the attorney shall file an affidavit of bias with the Chief Justice of the Ohio Supreme Court.

    5. 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.

    Race & Ethnicity 12-2 Read More

    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.

    OTSE Priority Recommendation
    Race & Ethnicity Subcommittee
    Legislation Required

    Death can only be imposed when the jury (or the panel of three judges if the jury is waived) has found both aggravated murder and an aggravating circumstance or specification. One of the many specifications is killing during the course of committing or attempting to commit or fleeing immediately after committing certain felonies (the so-called felony-murder specification, see R.C. 2929.03(A)(7)). Based upon data showing that prosecutors and juries overwhelmingly do not find felony murder to be “the worst of the worst” murders (which death sentencing is to be reserved for), further finding that such specifications result in death verdicts 7% of the time or less when charged as a death penalty case, and further finding that removal of these specifications will reduce the race disparity of the death penalty, the Ohio Supreme Court Joint Task Force recommended to the legislature that the following specifications be removed from the statutes: Kidnapping, Rape, Aggravated Arson, Aggravated Robbery, and Aggravated Burglary (the R.C. 2929.04(A)(7) specification).

    Full Text of Recommendation: Based upon attached data showing that prosecutors and juries overwhelmingly do not find Felony Murder to be the worst of the worst murders, further finding that such specifications result in death verdicts 7% of the time or less when charged as a death penalty case, and further finding that removal of these specifications will reduce the race disparity of the death penalty , it should be recommended to the legislature that the following specifications be removed from the statutes: Kidnapping, Rape, Agg Arson, Agg Robbery, and Agg Burglarly.

    6. 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.

    Race & Ethnicity 8-6 Read More

    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.

    Race & Ethnicity Subcommittee
    Legislation Required

    Having a local prosecutor’s decision to seek death reviewed by a committee of former county prosecutors appointed by the Governor and members of the Ohio Attorney General’s staff, would help assure that a county prosecutors’ individual idiosyncrasies or interpretations of the law are not creating unfair disparities from one county to another or possibly arbitrary or discriminatory decision-making. Federal prosecutors are required to follow such a policy, submitting their intent to seek death to the seasoned review of the U.S. Attorney General. Such a policy is needed here, given the disparities shown by race statistics above, and geography statistics below.

    Full Text of Recommendation: To address cross jurisdictional racial discrepancy it is recommended that Ohio create a Death Penalty charging committee at the Ohio Attorney General’s Office. It is recommended that the committee be made up of former county prosecutors appointed by the Governor and members of the Ohio Attorney General’s staff. County Prosecutors would submit cases they want to charge with death as a potential punishment. The Attorney General’s office would approve or disapprove of the charges paying particular attention to the race of the victim(s) and defendant(s).

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

    Race & Ethnicity 13-1 Read More

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

    OTSE Priority Recommendation
    Race & Ethnicity Subcommittee
    Legislation Required

    Like a housing or employment discrimination case that relies on statistical disparities to raise a challenge, a Racial Justice Act would allow the use of statistics to show a likelihood of race discrimination infecting a prosecution or decisions made during the prosecution, that would oblige the State to show there was no discrimination as there are race-neutral reasons that explain the decision-made. Present law forecloses looking at issues of race discrimination unless the defendant proves a state actor intentionally discriminated, which is nearly impossible to prove unless someone admits to discrimination, and presently statistics are not enough to raise a challenge or even get an opportunity to have access to information that may help prove discrimination occurred.

    Full Text of Recommendation: Enact legislation allowing for these types of claims to be raised and developed in State Court through a Racial Justice Act with such a claim being independent of whether the client has any other basis for filing in that court.

    8. 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.

    Defense Services 12-2-1 Read More

    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.

    Defense Services Subcommittee
    Legislation Required

    Expanding the jury pool (who can be called for jury service) to include not simply all registered voters, but also all licensed driver citizens, should provide greater diversity on juries.

    Full Text of Recommendation: To ensure a more representative jury pool, enact legislation that requires every jurisdiction to create jury pools from voter lists of all registered voters and all licensed drivers who are US citizens rather than only the voter registration list.

    Crime Laboratories and Medical Examiner Offices

    Recommendation Subcommittee Task Force Vote

    1. 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.

    Law Enforcement 17-2 Read More

    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.

    Law Enforcement Subcommittee
    Supreme Court Action Required

    This measure will require or at least greatly encourage use of accredited labs and/or qualified expert personnel, and assure an opportunity for representatives of both the state and defense to be present when evidence that is to be tested will at the same time be destroyed and unavailable for further testing. This measure is needed to ensure reliability in capital cases.

    Full Text of Recommendation: Subject to the special rule specified in 1(a) below, if evidence of the sort customarily subject to testing in a laboratory in a death penalty case is not originally reviewed by an accredited lab, then the defendant has the right to have the evidence reviewed a second time by an accredited lab. More specifically, any prosecution evidence that has not been tested in an accredited lab shall be retested in an accredited lab, at the request of the defendant and at the state’s expense. If such a request is made, there will be no reference to the first test (in a non-accredited lab) except as may be necessary to establish chain of custody. Defense forensic experts shall also be required, by Supreme Court Rule, to rely on testing by accredited labs, at the request of the prosecution, in death penalty cases. a. The following rules will apply to death-penalty-eligible cases in which testing of evidence is performed under circumstances that will likely entail the total consumption or destruction of the evidence to be tested: i. Where the testing is performed prior to indictment, the testing must be performed in the first instance by an accredited lab; ii. Where the testing is performed subsequent to indictment, the testing must be performed by an accredited laboratory and the court to which the case is assigned must grant prior permission, with notice to the parties, for the test. In the event the foregoing rules in this Section 1(a) are not observed, the results of the test shall be presumptively inadmissible, but the presumption may be overcome by good cause shown to the court to which the case is assigned, and if the court deems such evidence to be admissible, the court shall appropriately instruct the jury on the weight that it may choose to give that evidence. This recommendation does not apply to fingerprint evidence. “Accredited lab” means a lab that is accredited by any of the following: American Society of Crime Laboratory Accreditation Board (ASCLD/LAB); Forensic Quality Services, A.K.A. National Forensic Science Technology Center; or American Association for Laboratory Accreditation (AALA).

    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.

    Law Enforcement 18-1 Read More

    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.

    Law Enforcement Subcommittee
    Supreme Court Action Required

    This measure will require or at least greatly encourage use of accredited labs and/or qualified expert personnel, and assure an opportunity for representatives of both the state and defense to be present when evidence that is to be tested will at the same time be destroyed and unavailable for further testing. This measure is needed to ensure reliability in capital cases.

    Full Text of Recommendation: Require that each coroner’s office become accredited by the National Association of Medical Examiners (NAME), or have at least one person on staff or under contract who is a fellow of that organization (and who performs the procedure in the case), or have in place a contract with an accredited crime lab. Such a requirement would not require the coroner to refer all post mortems, and would preserve the coroner’s judgment as to which ones involved criminal activity. However, it would guarantee that the office either has successfully sought accreditation or has in place contracts with properly trained people to perform these kinds of specialized services when in the coroner’s judgment the need arises.

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

    Law Enforcement 10-6 Read More

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

    Disparity Subcommittee
    Legislation Required

    As the National Academy of Sciences and others agree, with the increased reliance on forensic evidence—including DNA, ballistics, fingerprinting, handwriting comparisons, and hair samples—it is vital that crime laboratories and medical examiner offices, as well as forensic and medical examiners, provide reliable, accurate results. “Junk science” (mishandled evidence or use of unqualified experts) was involved in 9 of the first 81 death row exonerations. The State of Ohio does not presently require the accreditation of crime laboratories. Though the State’s Bureau of Criminal Investigation and some local crime laboratories voluntarily have obtained accreditation through national accreditation programs, others have not. This should be required.

    Full Text of Recommendation: Enact legislation to require all crime labs in Ohio must be certified by a recognized agency as defined by the Ohio legislature.

    Mental Retardation and Mental Illness

    Recommendation Subcommittee Task Force Vote

    1. 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.

    Defense Services 15-2 Read More

    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.

    OTSE Priority Recommendation
    Defense Services Subcommittee
    Legislation Required

    This proposal asks the legislature to ban execution of those who suffer from serious mental illness at the time of the crime. Instead, a life sentence would be imposed. Under Ohio’s earlier 1974 death penalty law, death was foreclosed if the defendant suffered from such a mental illness that they lacked the substantial capacity to know right from wrong or to conform their conduct to the law. So excluding the mentally ill would essentially be returning to the way our law had been years ago. Some may ask how the mentally ill could ever end up on death row, when they are not the worst of the worst offenders. But current Ohio law readily allows this to happen. Ohio law simply allows the consideration of mental illness as one mitigating factor that could call for a sentence less than death that is weighed against the aggravating factors; it does not say a jury must give this great weight, so a weighing might conclude with a death verdict. Indeed, the problem begins earlier at the trial or guilt-innocence phase of the case. Ohio law greatly limits the insanity test, and also forecloses expert testimony at trial about the mental illness or organic brain damage of a defendant if the insanity test is not met. So juries may never learn of the mental illness at the time they are considering whether the defendant is guilty of the aggravated murder or specifications, or be aware of such information when deciding whether the defendant “purposely” or “with prior calculation and design” killed another. Those elements require a conscious desire to kill, a high level of knowledge, intent, purpose and premediation and weighing of a course of action of killing. A seriously mentally ill person may not have ever functioned at this high level, but could nonetheless be convicted of a death-eligible crime, because they cannot submit the needed expert evidence that would raise a reasonable doubt about whether they ever possessed this intent. Thus, a seriously mentally ill person may be convicted of a death-eligible crime that they did not in fact commit because the mental illness information that would question it is not admissible. This contributes to the numbers of seriously mentally ill on death row. The proposal also forecloses executing a person who has become seriously mentally ill while on death row. Death row conditions and other factors may bring about deterioration of mental health to an extent that it may limit to some extent the inmate’s understanding of the penalty and the reasons it is being imposed. Executions in such circumstances may also offend the evolving standards of decency, and call for imposition of a life sentence. These proposals leave it to the legislature to define “serious mental illness.”

    Full Text of Recommendation: Enact legislation to consider and exclude from eligibility for the death penalty defendants who suffered from “serious mental Illness,” as defined by the legislature at the time of the crime. Appropriate questions for the legislature to consider include: • Whether “serious mental illness,” is causally related to the crime? • Whether the determination of “serious mental illness,” should be considered before trial or at some time as determined by the legislature? • Whether the issue is already adequately addressed by the current law?

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

    Defense Services 12-7 Read More

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

    OTSE Priority Recommendation
    Defense Services Subcommittee
    Legislation Required

    This proposal asks the legislature to ban execution of those who suffer from serious mental illness at the time of the crime, or at the time of execution. Instead, a life sentence would be imposed. Under Ohio’s earlier 1974 death penalty law, death was foreclosed if the defendant suffered from such a mental illness that they lacked the substantial capacity to know right from wrong or to conform their conduct to the law. So excluding the mentally ill would essentially be returning to the way our law had been years ago. Some may ask how the mentally ill could ever end up on death row, when they are not the worst of the worst offenders. But current Ohio law readily allows this to happen. Ohio law simply allows the consideration of mental illness as one mitigating factor that could call for a sentence less than death that is weighed against the aggravating factors; it does not say a jury must give this great weight, so a weighing might conclude with a death verdict. Indeed, the problem begins earlier at the trial or guilt-innocence phase of the case. Ohio law greatly limits the insanity test, and also forecloses expert testimony at trial about the mental illness or organic brain damage of a defendant if the insanity test is not met. So juries may never learn of the mental illness at the time they are considering whether the defendant is guilty of the aggravated murder or specifications, or be aware of such information when deciding whether the defendant “purposely” or “with prior calculation and design” killed another. Those elements require a conscious desire to kill, a high level of knowledge, intent, purpose and premediation and weighing of a course of action of killing. A seriously mentally ill person may not have ever functioned at this high level, but could nonetheless be convicted of a death-eligible crime, because they cannot submit the needed expert evidence that would raise a reasonable doubt about whether they ever possessed this intent. Thus, a seriously mentally ill person may be convicted of a death-eligible crime that they did not in fact commit because the mental illness information that would question it is not admissible. This contributes to the numbers of seriously mentally ill on death row. The proposal also forecloses executing a person who has become seriously mentally ill while on death row. Death row conditions and other factors may bring about deterioration of mental health to an extent that it may limit to some extent the inmate’s understanding of the penalty and the reasons it is being imposed. Executions in such circumstances may also offend the evolving standards of decency, and call for imposition of a life sentence. This proposals leave it to the legislature to define “serious mental illness.”

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

    3. 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.

    Judicial Role 11-1 Read More

    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.

    Judicial Role Subcommittee
    Supreme Court Action Required

    This proposal is consistent with U.S. Supreme Court decisions that recognize a defendant has a right to represent themselves, but too, that though the defendant may be competent to stand trial (able to understand the proceedings), if they are mentally ill or mentally disabled, they may not be in a position to undertake the presentation of the defense or challenging of the state’s case without some form of legal assistance (actually appointing counsel to handle the case, or appointing a stand-by counsel who could advise the defendant when needed, or allowing the defendant to act as a co-counsel with an attorney).

    Full Text of Recommendation: Adoption of an Order, in the case of a Pro Se Defendant who is competent to stand trial but may not be competent to represent himself or herself because of a mental health or developmental disability, directing either the appointment of counsel to conduct the Trial or to act as “stand-by counsel” or “co-counsel” to assist the Pro Se defendant, or to assume or resume to proceed with Trial as counsel of record, in the event Defendant changes mind about proceeding as a Pro Se litigant. Note re: Indiana v. Edwards, 554 U.S. 164

    Capital Jury Instructions

    Recommendation Subcommittee Task Force Vote

    1. Improve jury instructions by conducting an annual review.

    Defense Services 16-0 Read More

    Improve jury instructions by conducting an annual review.

    Defense Services Subcommittee
    Supreme Court Action Required
    Passed Unanimously

    Jury instructions require frequent updating and improvement. Research has long indicated that capital jurors commonly have difficulty understanding jury instructions. In every one of the fourteen states studied by the National Science Foundation’s Capital Jury Project a significant percentage of actual capital jurors had failed to follow the constitutional parameters of death penalty law, due to this lack of understanding. One of these parameters in Ohio is the jury can only impose death if they find the aggravating factors outweigh the mitigating factors beyond a reasonable doubt — but jurors often do not understand the meaning of aggravating and mitigating factors and how to weigh them. The standard Ohio Jury Instruction 503.011(12) cautions that weighing aggravating and mitigating circumstances as not being simply about the number of witnesses or exhibits presented. The ABA Joint Task Force Report advised a similar caution about not simply counting up the number of mitigating and aggravating factors as a way to determine if the aggravators outweigh the mitigators. The jury must also be made aware that it has the option of extending mercy arising from the evidence, ie. arising from the mitigating factors in the case. In 2004 the Supreme Court of Ohio Joint Task Force on Jury Service made a similar recommendation to use plain English instructions, based on its own survey of jurors that indicated that a significant portion had difficulty understanding legal terminology. Present Ohio Rule of Criminal Procedure 30(A) permits, but does not require, the jury to receive a written copy or recording of jury instructions for use in deliberations; and an Ohio statute says the final jury charge must be reduced to writing “if either party requests it.” Making written jury instructions automatic would make trial practice consistent across the state. The Ohio Supreme Court’s Joint Task Force on Jury Service previously recommended this to increase jury comprehension, reduce the questions jurors have during their deliberations, and make their deliberations more efficient.

    Full Text of Recommendation: The Ohio Judicial Conference shall, on an annual basis, work with attorneys and judges, to review and revise as necessary the jury instructions in death penalty cases to ensure that jurors understand applicable law. In particular, the OJC shall request, on an annual basis, input from the Ohio Prosecuting Attorney’s Association, the Ohio Association of Criminal Defense Lawyers, the Ohio Public Defender, and the members of the Ohio Judicial Conference.

    2. Use “plain English” instructions.

    Defense Services 14-1-1 Read More

    Use “plain English” instructions.

    Defense Services Subcommittee
    Legislation Required

    Jury instructions require frequent updating and improvement. Research has long indicated that capital jurors commonly have difficulty understanding jury instructions. In every one of the fourteen states studied by the National Science Foundation’s Capital Jury Project a significant percentage of actual capital jurors had failed to follow the constitutional parameters of death penalty law, due to this lack of understanding. One of these parameters in Ohio is the jury can only impose death if they find the aggravating factors outweigh the mitigating factors beyond a reasonable doubt — but jurors often do not understand the meaning of aggravating and mitigating factors and how to weigh them. The standard Ohio Jury Instruction 503.011(12) cautions that weighing aggravating and mitigating circumstances as not being simply about the number of witnesses or exhibits presented. The ABA Joint Task Force Report advised a similar caution about not simply counting up the number of mitigating and aggravating factors as a way to determine if the aggravators outweigh the mitigators. The jury must also be made aware that it has the option of extending mercy arising from the evidence, ie. arising from the mitigating factors in the case. In 2004 the Supreme Court of Ohio Joint Task Force on Jury Service made a similar recommendation to use plain English instructions, based on its own survey of jurors that indicated that a significant portion had difficulty understanding legal terminology. Present Ohio Rule of Criminal Procedure 30(A) permits, but does not require, the jury to receive a written copy or recording of jury instructions for use in deliberations; and an Ohio statute says the final jury charge must be reduced to writing “if either party requests it.” Making written jury instructions automatic would make trial practice consistent across the state. The Ohio Supreme Court’s Joint Task Force on Jury Service previously recommended this to increase jury comprehension, reduce the questions jurors have during their deliberations, and make their deliberations more efficient.

    Full Text of Recommendation: The Ohio Judicial Conference shall review and revise as necessary the Ohio Jury Instructions to institute the use of “plain English,” and “plain English,” shall be used throughout capital trials.

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

    Defense Services 16-0 Read More

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

    Defense Services Subcommittee
    Legislation Required
    Passed Unanimously

    Jury instructions require frequent updating and improvement. Research has long indicated that capital jurors commonly have difficulty understanding jury instructions. In every one of the fourteen states studied by the National Science Foundation’s Capital Jury Project a significant percentage of actual capital jurors had failed to follow the constitutional parameters of death penalty law, due to this lack of understanding. One of these parameters in Ohio is the jury can only impose death if they find the aggravating factors outweigh the mitigating factors beyond a reasonable doubt — but jurors often do not understand the meaning of aggravating and mitigating factors and how to weigh them. The standard Ohio Jury Instruction 503.011(12) cautions that weighing aggravating and mitigating circumstances as not being simply about the number of witnesses or exhibits presented. The ABA Joint Task Force Report advised a similar caution about not simply counting up the number of mitigating and aggravating factors as a way to determine if the aggravators outweigh the mitigators. The jury must also be made aware that it has the option of extending mercy arising from the evidence, ie. arising from the mitigating factors in the case. In 2004 the Supreme Court of Ohio Joint Task Force on Jury Service made a similar recommendation to use plain English instructions, based on its own survey of jurors that indicated that a significant portion had difficulty understanding legal terminology. Present Ohio Rule of Criminal Procedure 30(A) permits, but does not require, the jury to receive a written copy or recording of jury instructions for use in deliberations; and an Ohio statute says the final jury charge must be reduced to writing “if either party requests it.” Making written jury instructions automatic would make trial practice consistent across the state. The Ohio Supreme Court’s Joint Task Force on Jury Service previously recommended this to increase jury comprehension, reduce the questions jurors have during their deliberations, and make their deliberations more efficient.

    Full Text of Recommendation: In capital cases, jurors shall receive written copies of “court instructions” (the judge’s entire oral charge) to consult while the court is instructing them and while conducting deliberations.

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

    Post-Conviction 10-8 Read More

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

    Defense Services Subcommittee
    Supreme Court Action Required

    Jury instructions require frequent updating and improvement. Research has long indicated that capital jurors commonly have difficulty understanding jury instructions. In every one of the fourteen states studied by the National Science Foundation’s Capital Jury Project a significant percentage of actual capital jurors had failed to follow the constitutional parameters of death penalty law, due to this lack of understanding. The jury must also be made aware that it has the option of extending mercy arising from the evidence, ie. arising from the mitigating factors in the case.

    Full Text of Recommendation: The Ohio Judicial Conference shall study the Ohio Jury Instructions to make clear that a jury must always be given the option of extending mercy that arises from the evidence as cited in Justice Scalia’s dissent in Morgan v. Illinois, 504 U.S. 719, 751 citing Woodson v. North Carolina, 428 U.S. 303-305

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

    Read More

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

    Defense Services Subcommittee
    Legislation Required

    Jury instructions require frequent updating and improvement. Research has long indicated that capital jurors commonly have difficulty understanding jury instructions. In every one of the fourteen states studied by the National Science Foundation’s Capital Jury Project a significant percentage of actual capital jurors had failed to follow the constitutional parameters of death penalty law, due to this lack of understanding. One of these parameters in Ohio is the jury can only impose death if they find the aggravating factors outweigh the mitigating factors beyond a reasonable doubt — but jurors often do not understand the meaning of aggravating and mitigating factors and how to weigh them. The standard Ohio Jury Instruction 503.011(12) cautions that weighing aggravating and mitigating circumstances as not being simply about the number of witnesses or exhibits presented. The ABA Joint Task Force Report advised a similar caution about not simply counting up the number of mitigating and aggravating factors as a way to determine if the aggravators outweigh the mitigators.

    Full Text of Recommendation: The Ohio Judicial Conference shall ensure the Ohio Jury Instructions make clear the weighing process for considering aggravating circumstances and mitigating factors should not be conducted by determining whether there are a greater number of aggravating circumstances than mitigating factors.

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