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Taking death off the table


Last year, there were 89 death penalty cases brought in Ohio.  The distribution was, shall we say, uneven.   Of Ohio's 88 counties, 62 of them brought no capital cases at all.  Only four counties had five or more:  Lucas with five, Hamilton and Lorain with six, Mahoning with eight...

... and Cuyahoga County with 34. That's not explained by disparity in population or crime.  It reflects the policy choice of Bill Mason, the county prosecutor up until November of last year.  Despite the claims of many that Mason was using the prospect of the death penalty to induce plea bargains, Mason insisted that he was simply seeking to "equally apply the law."  If he was truly seeking the maximum punishment because he believed the defendant deserved it, his office was singularly incompetent in proving it:  of the 400 capital cases he pursued during his term in office, only 16% resulted in verdicts which allowed for a possible death sentence, and only seven resulted in that sentence being actually imposed.  More typical was a suburban drug killing in March of 2010, which resulted in capital charges against six defendants.  By the end of the year, all had pled out, none to an offense higher than involuntary manslaughter.  Four were given probation.

Of course, that wasn't until about $120,000 in taxpayer money had been spent for lawyers, mitigation experts, defense investigators, and the like.  As the Supreme Court has reminded us from time to time, death is a qualitatively different punishment, and that means the normally penurious compensation provided to attorneys for indigent defendants gets ratcheted up several notches.  One of the two death sentences imposed in Cuyahoga County over the last three years (out of 135 indicted capital cases) was for Anthony Sowell, who kidnapped and raped 11 women over several years.  The case dragged on for two years, culminating in a two-month trial that cost over $600,000 in defense expenditures.  (That's for trial; it's likely that appeals and post-conviction can run the tab into several million dollars more.)  And that was in addition to the costs of the other capital cases:  50 in 2010, 37 in 2011.  Look at it this way:  the total expenditures for death penalty cases in 2010 and 2011 in this county came to slightly over $2.8 million, more than twice as much as was spent in the other 87 counties combined. 

Mason decided to retire last year, and five candidates ran for his seat.  All of them agreed on one thing:  they would drastically reduce the number of death penalty cases.  The guy who came out on top, Tim McGinty, has proven true to his word.  No new capital cases have been indicted since McGinty took office in November, and the death specs in seven others have been removed.

Few would have figured McGinty to have followed through so rigorously on his campaign rhetoric.  He's a former prosecutor, and his 18 years of service as a common pleas judge rarely saw an attorney who drew his name in the arraignment room respond with fist-pumps of jubilation.  His reticence to seek capital indictments is almost certainly spurred by considerations of money and effort, rather than by any disquiet at the prospects of executing someone. 

It may be a simple reflection of reality.  It's not as though Mason's record of obtaining a death sentence in only seven out of 400 tries solely reflected the weakness of the cases; Cuyahoga County juries have been exceedingly reluctant to impose the penalty, even in situations where they were routinely handed down ten or twenty years ago, such as in cop-killings.  In fact, in the last couple of years, the only defendant besides Sowell sentenced to death was Denny Obermiller, who killed his grandparents, raped his grandmother, refused any of his lawyers' efforts to defend him, and (successfully) taunted the three-judge panel into imposing the death sentence, calling them "idiots" for deigning to ask him questions during the mitigation hearing. 

McGinty was a member of that panel.


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