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Death of the Death Penalty?

Not quite.  Unless Judge Dick Ambrose decides to ignore the jury's recommendation, Anthony Sowell is going to get the needle.  Had the jury come back with life without parole, that might indeed have put the kabosh on any future capital indictments here, for a couple of reasons.

Reason Number One was that if anybody would be a posterboy for the death penalty, Sowell would be it.  To be sure, Cleveland juries, unlike their counterparts in the southern parts of the State -- and here's looking at you, Cincinnati -- have been reluctant to impose a death sentence, rejecting them consistently over the past several years, even for cop-killers.  But Sowell's crimes were both quantitatively and qualitatively different.  Killing eleven women over several years is bad enough, but when the police come to arrest you on an attempted rape and find two bodies in the living room, a couple more in the bedroom, several in crawlspaces throughout the house, and bunch more buried in the back yard, that lends the whole affair a Dahmeresque creepiness.  If a jury wasn't willing to give the death penalty to Sowell, what exactly would you have to do to get it?

Reason Number Two was the truth of the observation that whoever said money can't buy happiness never sat in a courtroom.  By the time the Sowell case had landed in the courtroom of Dick Ambrose, the third judge to handle the case, it had taken on a circus-like air.  The first judge recused himself because of a conflict, and the second judge was disqualified by the Supreme Court after email messages criticizing one of the defense attorneys were traced to her computer.  (She claimed that her daughter, while visiting from Columbus, had sent them.)  Ambrose apparently figured that if was going to salvage the case from eventual reversal by the 6th Circuit, he had to give Sowell's attorneys all the means necessary to defend him.

And boy, did he ever.  Cuyahoga County is particularly penurious when it comes to defense of capital cases.  A few years ago, the maximum that the county would pay for a mitigation expert was reduced from $5,000 to $3,000.  Considering that the expert's function is to dig through the defendant' entire history, reviewing his records from schools, jobs, prisons (Sowell had done 15 years for attempted rape), and the military (Sowell had spent seven years in the Marines), talking to his family, friends, and other people who knew him, that's a lot of work for not a lot of money, and several very good ones have stopped doing it in this county.

But not this time:  the defense asketh, and Ambrose giveth.  Money for paralegals to view thousands of hours of video footage from a five security cameras at a business near Sowell's home, on the off-chance that they may have recorded something of value to the case.  A military expert to review Sowell's time with the Marines, mitigation experts, forensic psychologists, neurodiagnostic testing, a crime scene expert, and so on.  By October of last year, the Sowell had already exceeded the previous high of $150,000 paid for a death penalty case in this county; by the time trial began in June, it had reached four times that amount. 

Unfortunately for Sowell, in this case, that money didn't buy much happiness.  Not a few people noted that while one could hardly walk past a TV set without hearing commentators and newscasters poring over the latest tidbit from the Casey Anthony trial, Sowell's was conducted in the absence of any national television exposure.  Most chalked it off to Sowell's decision to not include any cute little white girls among his victims, instead culling them from the ranks of the more downtrodden and less telegenic.  The analogy to the Anthony trial did not end there:  Sowell's lawyers, like Anthony's, argued that there was no direct evidence linking him to the killings.  They were right; there was no DNA, no murder weapons, no forensic evidence tying Sowell to any of the bodies.  But while the Anthony jury obviously was unpersuaded by the argument that if your daughter turns up dead in a swamp and you failed to report her missing for over a month, it can be inferred not only that she was murdered but that you were the one who did it, the Sowell jury found no problem with the inference that if decomposed bodies turn up in various rooms of your house, you had something to do with it.

The mitigation phase didn't go any better.  The only avenue for the defense to pursue here was the claim that Sowell was not innately evil, but simply the product of a childhood in which he himself was frequently victimized by abuse.  That theory suffered a torpedo hit amidships when the first witness, Sowell's niece, who had gone to live with Sowell's family as a child, testified that she was indeed sexually abused once she'd turned ten -- by Sowell, who was eleven.  "Let's put it this way," one grizzled defense lawyer confided in me, only half in jest.  "If I got 600 large to defend the guy, I woulda given the niece 50 of it just to shut up about the rape."  The effort to paint Sowell as the victim of a horrific childhood foundered further when evidence of a personality test given to him when he entered prison in 1990 surfaced, in which he'd been asked to complete the sentence "when I was a child..." and finished it, "my mother gave me all a child could want."  Having Sowell's cellmate during that incarceration, himself a convicted sex offender, testify that Sowell was a "nice, loving, caring person" left the prosecutor a truck-sized opening which he didn't hesitate to rush through.  "Where's the punishment?" he told the jury in closing, ridiculing the idea that life in prison was an appropriate alternative.  "You're sending him to a place where he can become the best of friends with child rapists."

Still, there were some sweaty palms while the jurors deliberated, and I'm guessing a pair of them belonged to County Prosecutor Bill Mason, who might have been envisioning a nightmare outcome like the Brian Nichols case in Atlanta.  Nichols had killed a judge, a court reporter, and several law enforcement officers, and his capital case virtually bankrupted the county and the Georgia public defender system, only to result in Nichols escaping the death penalty and getting life without parole instead.  Mason's situation was further complicated by an appeal from a number of family members of Sowell's victims prior to trial to drop the death specifications and let Sowell plead to LWOP, essentially asking him to take a deal he could have had $600,000 earlier. 

The jury took seven hours to decide to kill Sowell, but there was probably more satisfaction that the long ordeal had come to a close than with its outcome.  And there is concern about the future of capital punishment here.  The floodgates for defense expenses, having been opened, are going to be tough to close again; how is a court going to justify stinginess with the defense team in the next capital case?  "Hey, the last guy got six hundred grand; we'll be happy with a third of that."  What mitigation expert is going to work for $60 an hour when Sowell's mitigation expert got almost six times that?

And, of course, there's the substantial likelihood that Sowell will die of natural causes before he'll ever hear any guard shout, "Dead man walking."  The last person the State of Ohio killed, a few months back, comitted his crime in 1984.  Twenty-seven years from now, Sowell will be 78. 

If he's not dead already.


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