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Two more to death row

Here's a fun idea for a drinking game.  Read the opinion the Supreme Court's opinion last week in State v. Clinton, and down a shot every time you come across the phrase "overwhelming evidence."  Clinton raises twenty-three propositions of law from his conviction and death sentence, and you'll be hammered by the time you get to Number 12.

Clinton anally raped and strangled Heather Jackson, did the same to her three-year old daughter, and for good measure strangled her 18-month-old son.  And the hits keep coming:  five days earlier, he'd choked and raped another woman, and six months earlier, he'd gotten out of prison on a 13-year stint for involuntary manslaughter in the strangling death of -- you guessed it -- another woman.

Of those twenty-three propositions of law, none question the sufficiency or manifest weight of the evidence, an understandable omission given that DNA testing showed that the earth's population would have to multiply a thousand-fold before we'd find someone else who could've done this. 

The analysis of Clinton's legal claims begins on page 9, and nearly half of them are disposed of by page 10; all relate to claims that weren't raised in the trial court, and are thus reviewed for "plain error."  That requires Clinton to show a number of things, one being that "but for the error, the outcome of the trial clearly would have been otherwise."  See DNA, supra.

Next up is the customary claim of ineffective assistance of counsel, and Clinton chronicles no fewer than twenty-three instances of his lawyers' supposed misfeasance, malfeasance, and nonfeasance.  (One of them is the failure to object to court costs.  Let's try and concentrate on the big picture, okay?)  All that goes away in a single sentence.  See DNA, supra.

Clinton next contends that the joinder of the rape charge with the aggravated murder charges prejudiced him, because he would have testified that that the sex in the rape case was consensual, but that would have exposed him to cross-examination on the aggravated murder charges.  That's actually A Thing, but it requires Clinton to "make a convincing showing that he has important testimony to give concerning one case, and a strong need to refrain from testifying in the other."  Unsurprisingly, that's a bar Clinton is unable to hurdle.

There's a lot of time spent on Clinton's motion for change of venue, and 404(B) evidence, and some other stuff, and the court actually finds that the trial judge committed error on several occasions.  But if you think that's going to provide a get-out-of-jail card for someone who anally rapes and strangles a three-year-old, you're probably a first-time reader.

The nature of the crimes raise speculation as to why Clinton commanded his lawyers not to present any mitigation evidence.  There's a hierarchy in prison, and child sex offenders/killers are on the lowest rung.  There's a good chance that Clinton would be dead by this time had he gone into the general population.  And so we possibly have the irony of someone choosing to go to death row in order to stay alive.

*   *   *   *   *

If you're looking for a job, the Internet offers a variety of choices:  Ziprecruiter, Monster, Indeed, SimplyHired, to name a few.  There's always CraigsList, too, but you might want to give that a second thought after reading State v. Beasley

Beasley used CraigsList to lure several men to southern Ohio with a promise of a job there.  He shot four, killing three.  There's no DNA, and not much in the way of forensics; the case is built largely built on circumstantial evidence, and the opinion, which clocks in at a hefty 68 pages, devotes 24 of them to a recitation of the facts and the trial proceedings.

As we all know, however, circumstantial evidence can be as good as direct evidence, and it is here; while Beasley does challenge the sufficiency and weight of the evidence, that goes as it almost invariably does.  There are some other claims - hearsay, ineffective assistance - but nothing ground-breaking.

Actually, the treatment of the non-capital issues is more interesting.  Again, there's the issue of court costs, the defense arguing that while the trial court imposed them in the journal entry, it didn't do so in open court, and that the case should be remanded so Beasley can ask for a waiver of costs.  That's what used to happen -- in fact, the 8th District did that in a case just a few weeks ago -- but it shouldn't.  The reason it used to happen is because once costs had been imposed, there was no way to change that.  Not true anymore; the law's been changed so that a defendant can file a motion at any time seeking a waiver of costs.

The other issue of note was the trial judge's imposition of consecutive sentences on the non-capital offenses.  The court finds this to be error, because the judge never mentioned the second required finding, that consecutive sentences are not disproportionate, in either the sentencing hearing or the journal entry, so the case is sent back for the judge to decide whether a finding of disproportionality.  Wonder how that's going to turn out...

DeWine dissents on this point, persuasively arguing that given the imposition of three death sentences, it's a little tough to argue that imposing consecutive sentences that Beasley will never actually serve could possibly be disproportionate.  DeWine goes further, though, arguing that since Beasley didn't object to the imposition of consecutive sentences, the issue can only be raised as plain error.

No court has said this before, and I've always told lawyers not to object, since it does nothing other than prompt the judge to invoke the magic words.  There might be something to DeWine's point, though.  Since the judge no longer needs to give reasons for the findings, a remand to make the missing finding or two (or three) is the ultimate pro forma exercise.  The best way of overturning consecutive sentences is to show that they're unsupported by the record.  That's admittedly a tough sell, but not an impossible one.  It sure beats going through an appeal just to stand in front of a judge who tells you and the client, "Oh, that's what I need to say."   

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