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State v. Thomas

I don't know how many times the Ohio Supreme Court has reversed a death penalty case since we got the new law in 1981.  My guess is that you could count them without having to take your shoes off.  But whatever the number is, you can add one to it:  yesterday, the Supreme Court reversed a capital conviction in State v. Thomas.

Annie McSween worked as a bartender at a place in Mentor, about twenty miles east of Cleveland.  After closing up the bar, she left work at about 4:00 AM one morning.  Nearly five hours later, her body was discovered.  Her throat had been cut, she'd been beaten - the opinion notes that her upper jaw, nose, and dentures were broken - and vaginally and orally raped.  She'd been stabbed several other times, too, including five in the back after she was dead.  The coroner testified that the stab wounds were caused by knife with probably a four- to six-inch blade.

Which brings us to Thomas.  He was in the bar that night, and according to witnesses he was apparently upset that his girlfriend had broken up with him.  He asked McSween and another woman to dance with him; they declined.  McSween had to ask him several times to leave at closing time, and he finally did.

All during this time, Thomas was wearing a blue pocket-knife on his belt.  His previous girlfriends had testified that he always carried it, and that it had a blade three to four inches long.

That knife was never found.  Instead, the State introduced at trial five other knives they'd found which belonged to Thomas, although they admitted that none of the five was the murder weapon.

That's what got the case reversed:  the Supreme Court held that the introduction of the knives was prejudicial:  since they weren't the murder weapon, they had no probative value, and the only effect they had was to persuade the jury that Thomas was a violent person because he had all these knives.

The 4-3 majority is on solid ground here; there's a fair body of case law on "other weapons" evidence, with courts routinely finding that introduction of weapons not associated with the crime is prohibited.  It didn't help that the prosecutors described the knives as "full Rambo combat knives."  That led the majority to conclude that

$the state offered this evidence to portray Thomas as a person of violent character who had acted in conformity with his propensity to kill -- a use of evidence prohibited by Evid.R. 404(B) and R.C. 2945.59.

In fact, the dissenters (Fischer, Kennedy, and DeWine) had no real quarrel with the conclusion that introduction of the knives was error; they simply contended that it was harmless.

A few observations.  Whether the introduction of the knives was harmless depends on the remaining evidence, and there wasn't a whole lot there.  Yes, what happened in the bar provides some evidence of motive -- although the majority rejects even that -- but the evidence linking Thomas to the crime was sketchy:  there was no DNA, no blood on Thomas' clothes, no other forensic evidence, no damning witnesses. 

On the other hand, the trial attorney never objected to the introduction of the knives, so it's reviewed for plain error.  The Supreme Court has repeatedly cautioned that reversal for plain error should be "rarely granted, and then only to correct a manifest injustice."

Was Thomas' conviction a "manifest injustice"?  I think there are a couple of things which pointed the majority in that direction.  While the majority spends some time reviewing the lack of evidence, one key factor isn't mentioned in that portion of the opinion, but in the factual summary at the beginning:  Thomas took a polygraph test, and the examiner and two peer reviews concluded that Thomas "told the substantial truth during the test."  No evidence of that was admitted at trial, of course, but I think it had some effect on the court.

Because, after all, this is a death penalty case.  The unwillingness of jurors to vote for a death penalty, in light of all the cases where a capital defendant has been subsequently exonerated, is a subject of frequent comment, but I think that has an effect on the courts, too.  The death penalty is qualitatively different, and I think it heightens the "reasonable doubt" standard.  I think the majority was simply uncomfortable condemning a man to die after a trial like this, and with evidence like this.

It may be that there'll come a time when we'll wind up having to take our shoes off after all.

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