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Last man standing

Far be it from me to predict what Cuyahoga County prosecutor Bill Mason dreams about, but I figure that Anthony Sowell and Brian Nichols are making increasingly frequent nocturnal appearances.

On March 11, 2005, Nichols was being escorted to a courtroom in the Fulton County Courthouse in Atlanta to stand trial for rape.  He escaped from the deputy guarding him and took her gun, then made his way to the courtroom, shot the judge in the back of the head, and killed the court reporter.  When he ran out of the courthouse, a deputy chased after him.  The deputy had heard the alarm and responded without putting on his bullet-proof vest, which proved fatal:  Nichols killed him with a shot to the abdomen.  Nichols then carjacked no fewer than five different vehicles, the last one owned by Federal immigration agent David Wilhelm.  That carjacking was discovered when the police found Wilhelm's body.

Nichols was captured without incident the next day, and shortly thereafter the Fulton County grand jury indicted him on 54 counts of felony murder, kidnapping, armed robbery, and a host of other charges.  The District Attorney announced he was seeking the death penalty, as might be expected for a crime of that notoriety.

And that's when things went all to hell.  The defense immediately offered to plead Nichols guilty, in return for a sentence of life without parole, but the prosecutor was having none of it, listing some 500 potential witnesses in discovery -- everybody who had been in the courthouse the day of the crime.  That required the defense lawyers to spend money talking to each of those witnesses, and to just about everybody else in the State, in an effort to build a mitigation defense for Nichols.  The result was a trial which wound up costing over $3 million and bankrupted the State's public defender system.  In fact, the trial was supposed to begin in October of 2007, but was continued indefinitely because money had run out to fund the defense; it didn't resume until a year later.

The jury took 12 hours to convict Nichols on each count.  A month later, three jurors held out against the death penalty, and Nichols was sentenced to what the defense had offered $3 million earlier:  life without parole. 

Anthony Sowell entered Cleveland's consciousness on October 29, 2009, when police arrived at his home with a warrant to arrest him for rape.  He wasn't in, but there were bodies of two women on the floor of his living room.  Sowell was arrested two days later, and bodies of more women were found in crawl spaces, buried in shallow graves in the basement and in the backyard.  A skull found in a bucket inside the house brought the death toll to eleven.  At least for now; police are still digging through cold cases from the late 1980's.

Sowell's trial is scheduled to start on Monday.  I say "scheduled," because as anyone who reads this regularly knows, the likelihood of a trial going forward as scheduled here in Cuyahoga County is much more often the result of coincidence than intent.  This is the only courthouse in the state, perhaps in the country, where you will hear, as I once did, a bailiff say, "Okay, we'll set this for trial for February 17, with the understanding that it's not going to go to trial that day."  We are the home of the "fake trial":  a trial date will be set, all the witnesses will be subpoenaed, but instead of going to trial the parties will try to work the case out; if they don't, it'll be scheduled for a "real" trial.  I am not making this up.

But Anthony Sowell's case is way past the "fake trial" stage.  There have actually been two prior trial dates, one continued by the defense and the other by the prosecution.  The defense asked to continue the June 6 date for another three months, but the judge finally decided that it was time to roll. 

Past time, in the view of many.  When it comes to capital defense, Cuyahoga County has a reputation for miserliness.  Its caps for appointed counsel fees in capital cases, $25,000 to be shared by two attorneys, are among the lowest in the state, as are the hourly rates of $60 for in-court and $50 for out-of-court time.  A few years back the administrative judge signed an order limiting compensation of mitigation specialists to $3,000.  Try to find somebody who's going to review the defendant's history -- his medical records, school records -- and interview his family members, friends, teachers, prison guards, psychologists, and everyone else might give some relevant information, for three grand.

A number of factors intersected here.  First was the complexity of the case.  Unlike Nichols' escapade, Sowell's alleged crimes took place over a span of years.  And while Nichols was 34 when he committed his crimes, Sowell is 51, and that means 17 more years of history to dig up.  And history that's 17 years older:  when Sowell's lawyers tried to get his school records from the city of East Cleveland, they were told that Sowell's records, like that of just about everybody else who attended school in that city during the 70's and 80's, could be found in boxes under the stairwell of one of the schools, unclassified by any organizational scheme known to man.  The city said they'd be able to produce the records -- in two years.  Or so.

That brings us to the second factor:  we're on the third judge on this case.  The first recused himself after being quoted giving opinions about the case, and the second was removed by the Supreme Court for allegedly giving opinions about Sowell's lawyers.  Knowing  the attention the case was receiving would only increase, especially when it got reviewed on appeal and habeas, the new judge decided to give the defense more money for investigators, experts, paralegals, and other asssistants than has been given in prior cases.  The result is that the defense tab is just north of half a million at this point.  That bill's going to increase substantially if the trial runs its anticipated two months.  In fact, should the judge grant a change of venue, which he's denied for now but will undoubtedly take up after jury selection begins, it's probably Game Over:  no one wants to even think of the costs of moving the whole trial someplace else.

Here's the third factor:  while juries in Cincinnati and Franklin are apparently still willing to mete out death penalties, jurors in Cuyahoga County have shown an increasing reluctance to do so.  Copkillers, execution-style murderers, all have escaped a trip on the gurney; in fact, the only two death penalties imposed here in the past several years have been by three-judge panels, and in one of those case the defendant was for all intents and purposes a volunteer. 

So here's the thing.  The Sowell case has set what we in the law biz call a "precedent":  any future capital defense team is going to be able to argue, "Hey, Sowell's lawyers got 500 grand to work with, why can't we?"  I don't care what the administrative judge's journal entry says, limitation of a mitigation specialist's compensation to $3,000 might as well include a note to the Ohio Federal district courts to reverse the case for denial of a defendant's right to put on a defense as soon as the case hits habeas.

And here's the other thing:  all it takes is one juror to decide that, whatever crimes Sowell committed, he's not deserving of the death penalty, and he doesn't get it.   If that does happen, you've probably seen the last death penalty case here in Cuyahoga County.

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