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The choices in the Castro case

There must be something in the water here.  Forty years ago, that something was sufficient to set the Cuyahoga River on fire.  Now, it seems to work differently.  A couple of years ago, Cleveland achieved nationwide notoriety through the work of Anthony Sowell, when police found eleven bodies of women Sowell had raped and murdered, then buried in his basement and backyard. 

His trial in 2011 resulted unsurprisingly in his conviction and death sentence, but now comes along Ariel Castro and puts us back in the national spotlight.  Amanda Berry disappeared from the Cleveland streets in 2003, just before she turned 17.  Gina DeJesus was just 14 when she vanished a year later, and Michelle Knight was 20 when she went missing in 2002.  It turns out all three had been kidnapped by Castro and held in dungeon-like conditions in his house on the city's near west side.  Actually, there was one other captive:  Amanda's six-year old daughter.  The father was Castro; he was alleged to have repeatedly raped the women, and to have induced one of them to have four miscarriages by beating her.

After the initial celebrations over the miraculous recovery of the girls, the legal machinery began its slow grind.  Prosecutor Tim McGinty announced that he would seek an indictment alleging a count for every day the girls were held in captivity, and proved almost as good as his word:  the indictment, which you can read here (scroll to bottom of story) contained 329 counts, and that only covered the period up through February 2007; the case is still being investigated.  An idea of the overkill can be found four counts of kidnapping just for the day Knight was abducted -- one for luring her into the car, one for taking her to Castro's home, one for restraining her upstairs, and one for chaining her in the basement.  Whatever the resolution of the case, the concept of allied offenses and merger is going to get a workout.

The more interesting aspect of the case is the several charges of aggravated murder.  The statute includes "the unlawful termination of another's pregnancy," and the indictment specifies that "the State of Ohio reserves the right to seek a superseding indictment containing the appropriate 2929.04 Aggravating Circumstances."  Although, as I noted in a previous post, McGinty has been much more chary of seeking the death penalty than his predecessor was, he's announced that's on the table in this case, with his capital sentencing committee reviewing the matter. 

That would certainly put Castro's lawyers in a more difficult position.  Although they're both well-respected and experienced criminal attorneys here in Cleveland, their entrance into the case wasn't the smoothest:  they proclaimed that Castro "loved" the daughter he'd sired through his rape of Amanda Berry, a remark so infelicitous that you half expected them to follow it with an announcement that they'd be seeking court-ordered visitation.  Things have since gotten back on track; after Castro's arraignment yesterday, one of the lawyers implicitly acknowledged the obvious:  whatever the outcome of the case, it does not involve Ariel Castro ever breathing air outside of prison walls.  The legal team's obvious gambit at this point is to work out a deal that would spare Castro the possibility of a death penalty.

That really shouldn't be hard to do.  The claim that capital punishment can be imposed for the termination of a pregnancy runs into an immediate hurdle in the form of the Supreme Court's 2008 decision in Kennedy v. Louisiana (discussed here), in which a bare majority held that the death penalty cannot be imposed for child rape, or essentially for any crime which doesn't involve the death of the victim.

Sullivan creates not only a legal problem for trying to put Castro on a gurney, but a factual problem as well.  The pro-life/pro-choice debate aside, making this case a capital one involves the question of whether the fetuses that Castro aborted were "alive" in the sense that the termination could meet Sullivan's requirements.  Seeking the death penalty for Castro would probably have the consequence of forcing his attorneys off the case and having the public pick up the tab for his defense.  There's just no way Castro has the resources to bring in the medical experts that would be necessary to litigate that question.

Or the resources for attorney fees, for that matter.  One thing we learned from the Sowell case is that death is indeed a qualitatively different penalty, and that the efforts expended in defending a person from a capital charge need be greater by several orders of magnitude.  There was a business near Sowell's house which had a surveillance camera.  One of the many defense expenditures that the taxpayers footed the bill for was having a couple of paralegals view two years' worth of footage from that camera to see if there was anything which could help the defense.  There wasn't.  You don't do that in any other case; you do where the State is trying to kill the defendant.  Now imagine trying to put together a defense concerning events which played out over more than a decade.

That's not to suggest that we can expect to see a plea deal hammered out in the next few weeks, where Castro is sentenced to a couple hundred years in prison, and everyone gets on with whatever they get on with.  The prosecution and defense have to do their due diligence.  But unless somebody gets goofy, that's the deal that should eventually be worked out.

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