The State of Capital Punishment In Ohio

Jones was convicted of a murder committed in Ohio in 1997 for murdering a police officer trying to arrest him on outstanding felony warrants, and sentenced to death in 1998 following a sentencing hearing.

During the penalty phase, Jones’s counsel presented testimony from a clinical psychologist who diagnosed Jones with Antisocial Personality Disorder. The psychologist testified that Black men with this disorder (including Jones) would commit more murders—he claimed that about one in four “African-American urban males” suffered from the disorder, and the only treatment for them was to “throw them away, lock them up.” After hearing this testimony, the jury recommended the death penalty. The court accepted the recommendation and sentenced Jones to death. . . . 

In his post-conviction appeal, Jones did raise this ineffective-assistance claim and supported it with an affidavit from psychologist Hugh Turner. Dr. Turner, who had been contacted by post-conviction counsel, interviewed Jones and conducted new testing. In Dr. Turner’s view, Dr. Eisenberg’s diagnosis of APD was incorrect: Jones primarily suffered from post-traumatic stress disorder

How did Jones come to be betrayed in this fashion by his own court appointed lawyer?

Prior to the trial, held six months after he was indicted for murder, but the court wouldn't let him replace his court appointed counsel who he figured out was ultimately going to sabotage his case at the 11th hour.

the relationship between Jones and his appointed counsel deteriorated. Two hours after the jury was sworn in, attorney David Per Due filed an entry of appearance, having been retained by Jones’s family that day. The trial court held a hearing the following day to discuss the status of Jones’s representation. But after hearing from Jones and the attorneys, the court denied Jones’s motions for Per Due to substitute as counsel and for a continuance, finding that Jones’s relationship to his court-appointed counsel had not broken down beyond repair and that the request for a continuance was made in bad faith and for purposes of delay. The trial proceeded as scheduled with Doughten and Tobik representing Jones. At the close of trial, the jury found Jones guilty of aggravated murder. 

During the penalty phase, the court explained to the jury that they had four sentence options: (1) life in prison without parole eligibility for 25 years; (2) life in prison without parole eligibility for 30 years; (3) life in prison without the possibility of parole; or (4) death.

Appeals by Jones of the conviction and death sentence were rejected repeatedly by the Courts of Ohio, with the Ohio Supreme Court affirming the conviction and sentence on direct appeal in 2001, and a federal district court ultimately denying him relief in a collateral attack on the conviction and sentence.

But, after twenty-four years on death row, the U.S. Court of Appeals before the 6th Circuit vacates his death sentence, but not his conviction of the crime, for ineffective assistance of counsel.

This gross betrayal by his own lawyer and the expert witness his lawyer hired was corrected before any of the originally available sentencing options had been rendered moot after the incredibly prolonged appellate and post-trial litigation (which is typical of U.S death penalty cases). But spending twenty-four years on death row instead of in an ordinary prison sentence was an incredible psychological hardship and excessively severe punishment.

There was also a claim that his lawyers in the original murder trial failed to present evidence that another man had claimed to have murdered the police officer, but because this arguably could have been presented at that trial and was "harmless error" because courts found that the jury wouldn't have believed, this mistake by his trial lawyer went without a remedy and his conviction for murder was allowed to stand.

This is the quality of justice in Ohio's courts, which is very typical of cases in which the death penalty is imposed.

N.B. the 6th Circuit notes in a footnote that: 

During federal habeas proceedings, petitioner legally changed his name to Malik Allah-U-Akbar. For purposes of clarity and continuity, we continue to refer to petitioner by his former name.

Ohio's Latest Gerrymander

Ohio has once again adopted gerrymandered boundaries for its state legislative districts that favor Republicans. 

In the 2020 state house races, Republicans got about 55% of the popular vote, but about 64% of the state house. Republicans will likely win veto-proof majorities in the 2022 state legislative races again with the new map. Ohio's Congressional election results were similarly skewed by gerrymandering.

            Graphic provided by Dana Miller.

The new state legislative district maps which will be in place for the 2022 and 2024 elections are shown below:

Shortly after midnight Sept. 16, the Ohio Redistricting Commission passed revised district maps for the Ohio Senate and the Ohio House of Representatives, on a 5-2 party-line vote.

The commission consists of Ohio Gov. Mike DeWine, Secretary of State Frank LaRose, Auditor Keith Faber, Speaker of the House Robert R. Cupp, House Minority Leader Emilia Sykes, Senate President Matt Huffman and Senator Vernon Sykes.

Emilia Sykes is the daughter of Vernon Sykes. The two are the only Democrats on the commission, and the only two who voted against the revised maps. They said the maps have been drawn to favor Republican candidates and do not accurately represent the voters of Ohio. . . .

Every 10 years, the district lines must be redrawn for the Ohio Legislature and the U.S. House of Representatives. Because the commission voted in favor of the maps but did not have the support of the minority party, they will only last for four years instead of 10. . . . the maps that were passed would likely give Republicans an advantage of 62-37 in the House and 23-10 in the Senate. These are both veto-proof majorities. There are about 23 competitive districts. Eleven of those districts currently have a Republican in office and 12 are currently occupied by a Democrat.

 From the Oxford Observer. 

Ohio Death Row Officials Denounced by Federal Courts

The U.S. Supreme Court . . . denied [without comment] the state's appeal of decisions in inmate Charles Lorraine's case that said Ohio had strayed too far from its execution policies to be trusted to carry out the death sentence for now.

Federal courts must monitor every Ohio execution "because the State cannot be trusted to fulfill its otherwise lawful duty to execute inmates sentenced to death," the 6th U.S. Circuit Court of Appeals ruled last month.

The court upheld an earlier decision by U.S. District Court Judge Gregory Frost that chided Ohio for not following his warnings to adhere strictly to their policies.

"Do not lie to the Court, do not fail to do what you tell this Court you must do, and do not place the Court in the position of being required to change course in this litigation after every hearing," Frost wrote.

From here.

Such a pointed and direct rebuff of state officials for ignoring court orders comes up every now and then in the South, where there is a strong political culture of resisting federal authority, but is stunning in a state like Ohio.

Ivory Coast Type Election Issues In Cincinnati

Hamilton County, Ohio, whose principal city is Cincinnati, is faced with an election law issue pertaining to an open, elected partisan juvenile court judgeship election dispute upon which the Ohio Supreme Court and Ohio Secretary of State have ruled one way (don't count the ballots), but a federal district court judge, Chief Judge Susan J. Dlott of the U.S. District Court for the Southern District of Ohio has reached a contrary result.

What is the Board of Elections member (the Board itself is split two to two and does not agree) to do? The officials in question now face a contempt of court hearing today, which puts the officials at risk of personally going to jail or being fined, for failing to honor a federal court order that is contrary to a state court order.

Generally, elections are matters of state law. But, if a federal constitutional right or federal statute is implicated, federal law supersedes state law. And, while the 11th Amendment prevents state governments from having to deal with cases in federal trial courts, state and local government officials in suits not seeking money damages and arising under federal law, and suits against governmental entities distinct from state governments are not subject to that limitations. Doctrines that one learns when studying the federal courts generally provide that a final ruling of either a federal court or state court is binding on the parties who may not then forum shop for another judge with a more favorable outlook on the case. In particular, a federal trial court may not generally sit as an appellate body with regard to a state court ruling in a civil matter. But, since the law in this federal v. state jurisdiction area is so complex, even in cases arising out of purely state office elections (which are far simpler than cases arising out of federal elections, like Bush v. Gore, where a host of special constitutional rules apply), judicial rulings are sometimes hard to predict in this cases and judges come to different conclusions in the face of hot partisan conflict that often sees judges and elections officials lining up along the lines that their political histories would suggest, despite their duties to enforce the laws impartially.

Republican John Williams leads Democrat Tracie Hunter by 23 votes in the official count, but the parties disagree on how to handle 849 provisional ballots that were not counted.

The ballots were set aside on Election Day because poll workers believed they were cast at the wrong precinct.

Dlott, however, has said 149 of those ballots were cast at the wrong precinct because of poll worker error and should be counted. Many may have been cast at the wrong table even though voters cast their ballot in the right building.

The [federal] judge said failing to count ballots that were disregarded through no fault of the voter would violate the 14th Amendment’s requirement that all citizens receive equal protection under the law.

Partisan, Personal and Federalism Issues Involved

There is a partisan dimension to this struggle as there is in most election law cases.

The Board of Elections is split two posts for Republicans, two for Democrats, split evenly by design.

The Ohio Secretary of State is an elected Republican and favors the Ohio Supreme Court position that lets the Republican judge win. Six of the seven officially non-partisan elected justices on the Ohio Supreme Court were nominated by the Republican party and known to have Republican affinities.

The Democrats on the Board, however, would like a recount, as the federal judge, who was appointed by President Clinton, a Democrat, in 1995 when Democrat John Glenn and Republican Mike DeWine were U.S. Senators from Ohio, has ordered. Dayton native Dlott is married to Stanley M. Chesley (a trial lawyer more familiar to me than almost any lawyer in Denver by name, despite the fact that I haven't lived in the area for a copule of decades), lives in the most expensive single-family home ever listed in Greater Cincinnati, shows dogs, and has won praise for her racial sensitivity and even handed management and resolution of complex cases.

The Secretary of State is (by design) normally a partisan tie breaker for county boards of election, in this case on the issue of whether the federal court ruling should be appealed to the 6th Circuit Court of Appeals. If the 6th Circuit overules the trial judge, the conflict between the courts no longer exists, but, should the United States Court of Appeal for the 6th Circuit (which is neither particular conservative nor particularly liberal as federal appellate courts go in the United States at the moment) affirm the trial court's ruling (in which she is entitled to considerable deferrence in a number of respects), its authority vis-a-vis the Ohio Supreme Court's ruling is just as ambiguous as the trial court's ruling. Only the U.S. Supreme Court has clear jurisdiction over both the state and the federal judges in this case.

The case also pits concerns about federal involvement in state and local government operations against concerns about fairness in elections in a system controlled by political allies of the aggrieved candidate. Stereotypically (for modern times), it is the Republicans who are pressing a state's rights argument in this case, and the Democrats who are pressing for federal involvement in the interest of civil rights.

There is also a perceived racial element to the contest. Hamilton County is 70% white and 25% African-American, with the African-American population predominantly in Cincinnati, the central city, ahd the white population disproportionately in suburban Hamilton County. Democrat Tracie Hunter, a former public defender and guardian ad litem, who is also a pastor and radio personality is an African-American woman, while Republican John Williams, a former prosecutor campaigning with a tough on crime agenda in a court where most of the defendants are African-American juveniles and African-American parents, is a white man whose website prominently displays white Hamilton county suburbanites in the background, in a county just on the border between Northern leaning Ohio and Southern leaning border state Kentucky.

To be perfectly honest, if I had been forced to vote in that election, I wouldn't have been terribly happy with either of my choices. Both candidates are partisans seeking a post that demands neutrality and evenhandedness.

Voters were very evenly split in the race, and usually, in this kind of situation, where a significant number of provisional ballots are at issue, a recount will favor a Democrat. It wouldn't be surprising for an apparently heavy handed or partial ruling to lead to a riot in Cincinnati.

The Stakes

This all sounds like a very technical issue of civil procedure and election law, with valid legal considerations on both sides of the case.

The outcome of this case won't directly affect anyone who doesn't do have a connection to Hamilton County Juvenile Court, a county where 99.7% of the population of the United States doesn't live, and with which 95%+ of the population of Hamilton County will never have any business. It has one other judge in addition to the position at stake in this election, and the Juvenile Court's rulings are very important to those who are before the court, and who in making child custody decisions and juvenile delinquency sentencing decisions has immense discretion.

Life will go on with either resolution of the matter, so long as it is resolved, and there is really no room for compromise. Neither candidate has shown any basis for a do over of the election, only one can be elected for a long term to the only judgeship on the court, and the judicial ideologies and the personal experiences that the candidates bring to the court are very different. Either way, unhappen litigants can try to appeal rulings without a proper legal basis.

Cote D'Ivoire Compared

But, while this particular case in Ohio won't change the world, an extremely similar legal issue in Cote D'Ivoire's 2010 Presidential election, in West Africa, in a country only a little larger in size and area than Ohio (it has 20.6 million people up by a third in the last decade alone, while Ohio has about 11.5 million although probably a similar number of adults of voting age; it has 124,502 square miles, while Ohio has 44,825 square miles; both have strong regional and ethnic partisan divides), in which a Board of Elections and independent election observers came to one conclusion on the outcome of a contested election dispute arising out of vote counting concerns (in favor of the contesting candidate Alassane Ouattara), while the Constitutional Court of the country came to a contrary determination (in favor of the incumbent President Laurent Gbagbo).

The election dispute in Cote D'Ivoire has brought that country to the brink of civil war, despite the absence of a complicated mix of federal courts. Scores or hundreds of people have died already in the several week old dispute. The international community has sided with the challenger (in part on the merits, and in part because the incumbent has manipulated the electoral process in undemocratic ways that were to be put behind the country in free and fair elections in 2010), while the incumbent appears to have practical control of most instruments of state power in the country.

UPDATE: The 6th Circuit has entered a stay in the case. All the original source documents you could ever want can be found here.

Texas Worse Than Ohio

Texas is worse than Ohio when it comes to voting rights.

Something's Rotten In Ohio

Ohio election officials are disqualifying thousands of ballots because the wrong number from a driver's license is recorded on them. A U.S. district judge overruled the process. The 6th Circuit Court of Appeals, for now, has allowed these disqualifications to go forward. There have also been questionable removals of voters from the voter registration rolls.

The timing couldn't be worse.