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What I learned in Columbus, Part I

I had an oral argument in the Ohio Supreme Court yesterday morning, and so did Jeff Gamso and Erica Cunliffe of the county public defender's appellate division.  That unit, commanded by the elfin John Martin, has topnotch talent.  Jeff writes his own blog and has argued cases before the US Supreme Court, and Erika has a solid record and one of the sharpest minds I know.  (Martin was otherwise occupied with the Quixotean endeavor of filing a motion for reconsideration in a case he lost last week by a 7-0 vote.  "When I walked in that courtroom, I counted two votes for my side, so don't tell me oral argument doesn't matter," he confided.)

I was there for the argument in State v. Jones, which presents the issue of whether HB 86 or pre-SB 2 law applies to all the defendants in the cold case rapes that have bubbled up here since someone finally discovered that there were umpteen thousand rape kits collecting dust in the evidence rooms of the Cleveland police department.  We'll talk about that one tomorrow.  Today, let's talk about Jeff's and Erica's case. 

They were there to try to keep Anthony Sowell from getting the needle.

Back in 2009, a woman came into a Cleveland police station and claimed that Sowell had just tried to rape her.  The cops got an arrest warrant and went to Sowell's house.  They didn't find him, but they found the bodies of two women lying on the floor.  They found four other women buried throughout the home, another three and the remains of a fourth in the yard, and a skull in a bucket, bringing the body count to eleven.  After a tumultuous legal drama which included replacing the first two judges on the case, Sowell was finally tried two years later, convicted, and sentenced to death.

Sowell was up first, so I chatted with Jeff and Erica while we waited for the justices to come in.  "Be sure to press that 'actual innocence' argument," I kidded Gamso.  "I think that's killer.  Wait..."

That probably would have worked as well, as things turned out. 

They had a couple interesting arguments.   The first was that Sowell wanted to plead guilty and then just argue mitigation; disputing guilt was pointless, and while the prosecutors would put on their evidence about the crimes in the mitigation hearing, Sowell might gain some points with the jury for not disputing that.

The problem was, under Ohio law, if Sowell wanted to plead guilty, he had to so before a three-judge panel, and they'd be the ones to decide his punishment.  And no death penalty lawyer in his right mind would opt for a three-judge panel instead of a jury deciding if his client dies.

So the argument was that this was unconstitutional, drawing from the Supreme Court's decision earlier this term in Hurst v. Florida (discussed here), which nullified Florida's death penalty scheme because it allowed the judge to override the jury's recommendation of life.  Sowell contends that Hurst means he's entitled to have a jury determine his fate, and Ohio law prevents that in this situation.  It's a stretch, and this court isn't going to buy it, but maybe some Federal court will.

But what Jeff got dragged into was actually their best argument, from a purely legal point of view.  Sowell had filed a motion to suppress the 11 ½ hour statement he'd given to the police, and the judge had closed the hearing on the motion to the public, over the objection of the defense, and without making the findings necessary to exclude the public.  Everybody agreed that was wrong.  What to do about was the question.

Gamso argued that the proper remedy was to remand the case back to the trial court to conduct a new suppression hearing, this time with people in the gallery, and hold off deciding everything else until that was done.  If the judge granted the suppression motion, there'd be a new trial.  If he didn't, everybody would troop back down to Columbus to sort through the 20 remaining propositions of law.

Like I said, that's a great legal argument.  But there's the practical side.  The suppression hearing involved the 11 ½ hours of Sowell's statement to the police.  The judge heard everything, and overruled it.   What are the chances of the judge making a different decision on a second look, one which would result in his spending another six weeks in trial on this case?  There's a line from a Dylan song about what you would pay to get out of doing the same thing twice, and with all respect to this judge, who I know and admire, I'd be willing to bet that he'd part with a minor appendage to avoid that circus.  None of the justices appeared inclined to do the same thing twice, either:  having the case sit around for another year or two while the judge redid the suppression hearing. 

That was largely because, if you begin with the assumption that there should be a death penalty - which I don't - Sowell's about as good a candidate as you're going to find.  As the prosecutor pointed out to the court, the most number of killings anyone who got the death penalty in Ohio had committed was five, and that was all at one time.  Here, there were eleven killings, methodically committed over a two- -and-a-half year period.  Some of the bodies were found with bindings still around their hands and feet.

And Sowell brought nothing to the mitigation table other than a seven-year stint in the Marines.  His IQ was in the mid-80's, well above the retardation limit Atkins set for execution.  He fell back on the claim that he was abused as a child, but everybody in the family contradicted him on this, one of his sisters claiming that he had sexually abused her when she was 10.

In the end, Jeff's task was every bit as Quixotean as John's.

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