Death penalty report disputed, opponents still hope

Published 12:00 am Tuesday, October 2, 2007

Death penalty opponents hoping a long-awaited study would bolster their efforts to end capital punishment saw the opportunity overshadowed by questions over the study’s bias and much bigger news from the U.S. Supreme Court.

The analysis released last week by the American Bar Association said Ohio’s death penalty system was so flawed that Gov. Ted Strickland should immediately halt executions until the state could do its own study and fix problems identified by the ABA.

Anticipation over the report was high and the state’s American Civil Liberties Union chapter scheduled a rally two days later, hoping to ride the tide of the report’s findings.

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But the study found itself in trouble almost immediately over the makeup of the 10-person team of Ohio lawyers that compiled the findings.

No members are current prosecutors. Four are defense lawyers, a fifth is a lawyer and professor who works to free innocent people through DNA testing and a sixth is a Democratic lawmaker, Rep. Shirley Smith of Cleveland, long opposed to the death penalty.

Even the crime-fighting feather in the team’s cap, Geoffrey Mearns, a former assistant U.S. attorney general who prosecuted Oklahoma City bomber Terry Nichols, turned out to have strong reservations about capital punishment.

‘‘The death penalty in the United States, if we have one, should be reserved for the worst offenders for the worst offenses, and only if a system exists to ensure adequate legal defense at every stage,’’ Mearns, dean of Cleveland State’s Cleveland-Marshall College of Law, said in an interview after the report was released.

Even the name of the ABA project, reviewing laws in eight states, seemed to indicate a bias: the ‘‘Death Penalty Moratorium Implementation Project.’’

‘‘All you have to do is look at the membership of this group and see where it’s going to go,’’ said John Murphy, executive director of the Ohio Prosecuting Attorneys Association.

Although the study made the front page of most newspapers, the rally two days later, for which supporters had promised crowds in the thousands, drew only about 200 people, about average for Statehouse protests.

Yet opponents weren’t left without hope. The day after the ABA report was released, the U.S. Supreme Court announced it would consider a challenge to lethal injection by a pair of Kentucky death row inmates.

The inmates say injection constitutes cruel and unusual punishment because prisoners can suffer agonizing pain if the three-drug cocktail isn’t administered properly.

Similar lawsuits are making their way through federal courts around the country, including in Ohio.

A ruling in favor of the inmates likely wouldn’t end the death penalty, since lower-court federal judges have already noted that states’ procedures are readily fixable. But it could force delays or changes as states debate their injection protocols.

That makes it the bigger news of a big death penalty week in Ohio, though not perhaps what opponents expected as they first unveiled the ABA study.

The study found the state’s system met only four of 93 standards identified by the ABA for a properly functioning capital punishment system. The report says Ohio fails to provide adequate legal help, doesn’t preserve DNA evidence long enough, doesn’t properly compare one death sentence to other similar cases and has produced a system full of racial and geographic disparities.

The ABA’s defense of the team’s makeup fell flat, especially when former ABA president Michael Greco, who handled the report’s release, said he didn’t know the positions members held on the death penalty.

That stretched credulity given Smith’s efforts over almost a decade to pass bills to study the fairness of the death penalty.

Another team member, David Stebbins, is one of the state’s most experienced and best-known capital defense lawyers.

Criticism of the report didn’t just come from prosecutors. Chief Justice Thomas Moyer of the Ohio Supreme Court, who has upheld his fair share of death sentences over the years, issued a brief statement promising to look at the results, while noting, ‘‘the Supreme Court of Ohio was not consulted in the preparation of this 500-page report.’’

Andrew Welsh-Huggins is a correspondent for the Ohio Associated Press’ Columbus Bureau.