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A Capital Defense

Death Penalty. Two words that chill. Two words that polarize our society today.

Is it following the word of God by adhering to the Old Testament dictate of “an eye for an eye?”

Or is it simply a barbaric act of vengeance?

In Ohio not every time a murder, a homicide, is committed is the death penalty put on the table.

Various factors come into play to determine the fate of the one convicted of murder ranging from a prison sentence to the ultimate punishment — death by lethal injection.

And many times the accused in a death penalty case is without the financial means to pay for his or her own defense.

However, in Ohio that defendant is provided with counsel who must satisfy specific requirements before taking on the case.

Here is a look at what it takes to defend a capital case.

CAPITAL CRIMES

The crimes that can be tried as a death penalty or capital case are specifically stated in the Ohio Revised Code. Those acts include murder for hire; murder to escape detection or punishment for another crime; murder while under detention; murder after being convicted of another murder; murder of two or more persons; murder of a law enforcement officer; murder while committing kidnapping, rape, aggravated burglary, robbery or arson; murder of a witness to prevent testifying; murder of a child under 13 years of age; and murder during a terroristic act.

“These specifications must be separately stated in the indictment and proven at trial and if the defendant is found guilty of both murder and the specification, the second trial occurs with the same jury,” Charles Knight, a Meigs County attorney, said.

It is in this second trial where the jury must decide if other factors such as mental defects outweigh the aggravating circumstances. If they do, then the defendant cannot by statute be sentenced to die for the crime.

Today Ohio executes solely by lethal injection, a method first introduced in the state in 1999.

However, then inmates had the option to choose either a three-cocktail injection or the electric chair. In 2001 then-Gov. Bob Taft ordered the elimination of the electric chair.

In September of 2009 all executions were halted after the state’s botched attempt to execute Romell Broom when prison personnel couldn’t find a suitable vein for the lethal mixture.

That led to a moratorium on Ohio executions until December when Kenneth Biros was put to death using the one-drug method, an arguably more humane manner.

That was followed with the execution this month of Vernon Smith. Broom remains on death row.

In his 20 years as a trial attorney Knight has acted as lead counsel in 18 death penalty cases.

He is one of 409 Ohio attorneys who are assigned these cases when the accused fits within specified economic criterion that define him or her as indigent. A person is defined as indigent and eligible for such counsel if he or she has an income of 187.5 percent of the national poverty level.

Those above that guideline must choose and pay for their own counsel.

In the next two months Knight is scheduled to take the courtroom again to act as lead counsel in two high-profile capital cases in our area: the trial of Kara Garvin, the Franklin Furnace woman accused of murdering three people in their Scioto County home and that of Tom Wilcox, the Ironton man accused of murdering his estranged wife by pouring gasoline on her, then igniting it.

166 DEATH ROW INMATES

If Wilcox, 38, is convicted of murdering his wife, Amy, and sentenced to die, he will become the 72nd white male on the state’s death row, joining 86 African American males, four Hispanic, two Native Americans and two Arab-Americans.

If Garvin, 30, meets the same fate, she will join Donna Roberts, 65, of Trumbell County as the only two women on Ohio’s death row. Roberts is white.

Recently Knight responded to a series of questions via e-mail about the training of lawyers of capital cases and how a defense is mounted.

How does a capital case differ from other criminal cases for the attorney?

“The difference in capital cases from other cases, even regular murder cases, is one of intensity and presentation,” Knight said. “In non-capital cases, the strategy is almost always to fight tooth and nail on the guilt v. non-guilt throughout.”

However, defending a capital case requires a different strategy because the attorney may not have simply a single trial to argue. If the first trial ends in a guilty verdict, there is the second that will determine if the client lives or dies.

UNIQUE BALANCE

“Capital cases require a certain balance because you are really preparing the jury for the difficult task before them of deciding guilt or non-guilt always with the thought in the background that they will ultimately be going to make a life or death punishment decision about your client,” he said.

“The ‘capital case’ is a special breed of criminal cases unlike all others and if one enjoys the trial atmosphere, then it is the only place to be. …

“My client is almost always hated by the community and accused of the most egregious of crimes … A capital lawyer must always be presenting his cases with the thought that the juror needs to constantly be reminded that the case they are judging is not a murder case because murder is not punishable by death. It has to be a murder where other serious ‘specifications’ are present and that the juror has to decide if the ‘other acts’ so intensified the murder that death is the ‘only option.’”

WHO CAN DEFEND

So what does it take to be a capital case defense lawyer? Can anyone step up to the courtroom plate and take on the defense of a capital case? In Ohio, the answer is decidedly not.

Each indigent defendant in a capital case must have two counsels, both certified by the state, after meeting specific training qualifications.

Among the qualifications for capital case defense counselors are at least five years of civil or criminal litigation or appellate experience; 12 hours of specialized death penalty training; and experience as co-counsel in one murder or aggravated murder trial or as lead counsel in one first degree felony jury trial or experience as lead or co-counsel in at least two felony jury or civil jury trials. The specialized training runs the gamut from from how to investigate a death penalty case to how to pick a jury to use of experts in the penalty phase of the trial to presenting a successful closing argument.

“Attorneys have to attend 12-hour training every two years,” according to Tammy White, secretary to the committee for certifying counsel for indigent cases. “If they do not attend, they are decertified.”

But as long as they keep current with training, attorneys may retain their certification indefinitely.

“The goal of the training program is to educate and inform younger lawyers who have interest in this specialized kind of work and still allowing expansion of the more experienced lawyers’ learning curve,” Knight said. “The training is less on particular aspects of the trial and more on the approaches to difficult cases and the issues of death imposition which are truly special areas of trial unlike any other.”

So with specific qualifications as far as training and experience and the requirement that a death penalty defendant must have two counsels, how would the quality of indigent defense cases in Ohio be judged?

HOW GOOD IS THE SYSTEM?

“It is much better than it was years ago, but like anything we can always improve,” Tim Young of the State Public Defender’s office, said. “Most cases today that are getting reversed are 10 years old. Because of that you are always finding when a case is getting reversed, how we were performing 10 years ago. We had one death verdict statewide out of the six death penalty trials last year. That was out of 75 capital indictments. That means the defense did pretty well.”

It was the special nature of a death penalty case that brought about the current state requirements, Young said.

“The court has said death has a whole component that doesn’t exist in other trials. There is a whole second trial, the mitigation trial,” he said. “They humanize who this person is. It is a more holistic approach, not just the facts of the murder. The holistic approach is this person and this crime and all the attendant facts and circumstances is that one deserving of the death penalty.”

Right now, almost three-fourths — or 35 — of the states in this country allow punishment by execution for certain murders. The majority of those states lay out standards on who can handle the defense for capital cases.

These can run from a simple requirement of no less than five years’ experience in criminal law in Alabama to the more detailed regs in California where an attorney must have had at least four years in active practice, have been counsel in seven felony appeals including murder or five felony appeals and two death penalty appeals and nine hours appellate criminal defense training, six of which involve death penalty appeals.

Attorney Janet Moore, now with the Ohio Policy and Justice Center in Cincinnati, was involved in North Carolina’s public defense reform process where defects, she said, ran from inappropriate counsel assigned to defendants to a lack of in-the-trenches training.

“Attorneys would receive appointments for which they were not qualified,” she said.

However reforms changed all that, establishing a neutral body in charge of assigning lawyers and revved-up training requirements.

“With the vesting of appointment power in an independent body, plus, most critically the implementation of skill-based training programs, I will personally say over 10 years, I saw an extraordinarily dramatic improvement,” she said. “The cases were being tried right.

“Law school does a lot of things right but they don’t teach how to be a courtroom lawyer very well. Law students come out with the best hearts in the world, but not a clue to handling a criminal case. There is such a difference between sitting in the classroom and standing on your feet in the courtroom.”