Sunday, September 10, 2000

Clouded cases


Prosecutors' conduct risks reversals

By Spencer Hunt
Enquirer Columbus Bureau

        COLUMBUS — One out of every three death sentences that Hamilton County prosecutors have won since 1988 contain critical errors that could help condemned killers delay and avoid execution.

        Court documents examined by The Cincinnati Enquirer show the Ohio Supreme Court repeatedly has criticized Hamilton County prosecutors for making improper courtroom statements to win 14 death penalty cases over the past 12 years.

[photo] Madge Burton holds pictures of her slain daughters and grandchild. Their confessed killer won a new trial.
(Ernest Coleman photo)
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        The justices have upheld convictions in 13 of the cases and have yet to release their decision in the 14th. In opinions accompanying their rulings and in their own words the justices warn that overzealous courtroom statements could overturn these convictions in later appeals.

        Statements by prosecutors that play on jurors' sense of outrage and emotions, that stray from facts in evidence or that paint defense lawyers as dishonest are improper in death penalty cases. These restrictions are meant as a safeguard, so that juries consider only the facts and hand down death sentences for the most heinous crimes.

        Prosecutors across Ohio have sometimes made improper statements in court. But Chief Justice Thomas J. Moyer says Hamilton County prosecutors have too often stretched or broken the rules.

        “Hamilton County has a greater number of these cases,” he says, although he is reluctant to compare the conduct with other county prosecutors. “The record speaks for itself.”

        For example, after Darryl Gumm was convicted of the 1992 sexual assault and beating death of a 10-year-old, the justices said prosecutors went too far when they asked jurors to imagine the boy's desperate final moments.

        “How many times did he beg them to stop?” said one prosecutor, unidentified in court records. “How many times did he say a little prayer for help?”

        The justices again criticized prosecutors in July, this time for their conduct in convicting hotel worker Elwood Jones for the 1994 murder of a New Jersey grandmother.

[photo] Former prosecutor Joe Deters: “I'm not trying to criticize the court, but it's very hard for prosecutors to argue a case when the rules are changing.”
(Enquirer photo)
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        Prosecutors said Rhoda Nathan's life had no more value to Mr. Jones than a pendant Mrs. Nathan wore around her neck. They also described a witness as a “paid defense expert.”

        Justice Moyer said such arguments unnecessarily threaten otherwise solid death sentences. Although a decision on Mr. Jones' appeal is pending in the Supreme Court, the justice made it clear he's fed up.

        “How do we stop prosecutors from engaging in conduct that we tell them time and time again is improper?” Justice Moyer asked during oral arguments in the case.

        Hamilton County Prosecutor Mike Allen defends his office, which has sent 48 people — more than any other county in the state — to death row since the death penalty was reinstated in 1981. But he acknowledges misconduct could lead to overturned convictions.

        “It's always a possibility,” he says. “But we just don't know.”

        That makes murder victims' surviving family members livid. More than 13 years after his wife and daughter were killed in a Cincinnati parking lot, John Schoonover was outraged when a federal judge ordered a new trial for killer Ronald Dean Combs.

        “There was a police officer who saw the whole thing,” he says of the crime. “Then the court says, "Well, he didn't get a good trial.'”
       

Cases at risk?
        Of the 14 cases in question, only Mr. Combs' conviction has been dealt with in a federal court. That conviction was overturned not because of prosecutors' improper statements, but because the defense did a poor job.

        But the threat of overturned convictions because of improper statements is real. Prosecutors can point to a Butler County case as the best example.

        In 1988, the Ohio Supreme Court sent one of its earliest and strongest warnings to prosecutors to clean up their acts. In the case of Rhett DePew, a confessed triple murderer, the high court criticized Butler County Prosecutor John Holcomb for saying things during the trial that endangered the case.

        Mr. DePew signed a 22-page document in which he confessed to repeatedly stabbing Theresa Jones, her 7-year-old daughter, Aubrey, and Ms. Jones' sister, Elizabeth Burton, in Oxford and then setting their bodies on fire to cover up the evidence.

        Records show Mr. Holcomb told the trial judge he did not care if Mr. DePew was treated fairly. The prosecution also told the jury about a knife fight and a prior crime that were not in evidence.

        Although the high court upheld Mr. DePew's death sentence, it warned prosecutors in all Ohio counties not to say similar things.

        Twelve years later, in April, Chief U.S. District Judge Walter Rice ordered a new trial for Mr. DePew. In Judge Rice's opinion, Mr. Holcomb's comments “removed the scales of justice from the courtroom entirely.”

        The state is challenging Judge Rice's decision in the U.S. Court of Appeals for the 6th Circuit.

        As their death sentences proceed through the appeals process, no one knows for sure how federal judges will react to similar statements made by Hamilton County prosecutors.

        Of the 14 cases the Ohio Supreme Court has criticized, 13 await decisions from federal district court. Many are still in preliminary stages and could take years to complete.
       

“Imagine the terror”
        Justices found a wide variety of errors in Hamilton County death sentences. Supreme Court records, which almost never identify prosecutors by name, show they frequently encouraged jurors to imagine what the victims were thinking as they were being killed.

        One example is the case of Mr. Combs, who was sentenced to die for the 1987 shooting deaths of Peggy Schoonover and her mother Joan Schoonover in a Queensgate parking lot.

        “Can you imagine the terror of that? A gun right to your head,” a prosecutor said. “Was (Peggy Schoonover) thinking of little Joey, "Who's going to take care of him? Who's going to raise my little boy?'

        “And then comes the pull of the trigger and she's gone.”

        Justices said such arguments are improper because a victim's thoughts are not in evidence. In other cases, justices said prosecutors unfairly criticized defense lawyers and their defendants.

        A Hamilton County jury sentenced Gerald L. Clemons to die for a 1995 shooting spree that killed three employees of a Cincinnati trucking company. The prosecution labeled Mr. Clemons a “liar” and described the defense lawyers as “just doing their job.”

        In the case of James Ethan Mills, one prosecutor repeated a line that actor George C. Scott uttered in the movie, Patton. Mr. Mills was convicted of shooting teller Marsha Burger in the head during a 1988 bank robbery.

        “When you put your hand into a pile of goo that just a few moments ago was your best friend's face, you will know what to do,” the prosecutor told jurors.
       

Defense silent
        If the prosecutors' comments troubled justices, they often did not appear to disturb defense lawyers.

        The Supreme Court opinions reveal defense attorneys rarely objected when prosecutors argued out of bounds.

        Defense attorneys offered different explanations for the silence.

        Inexperienced defense lawyers often fail to recognize illegal arguments, says Gregory Meyers, chief death penalty lawyer with the Ohio Public Defender Commission.

        But that's not always the case, says Elizabeth Agar, a Cincinnati lawyer who has argued death penalty cases since 1980. She notes that prosecutors make most of their improper statements in fast-paced closing arguments.

        “A defense attorney is reluctant to interrupt a closing argument because it irritates the jury and it draws more attention to what was just said,” Ms. Agar says.

        Prosecutors, nonetheless, “should darn well know these are illegal arguments,” Mr. Meyers said. He accuses prosecutors of “cheating" in death penalty cases.
       

Consistent support
       

        Although the Supreme Court has written at least four lengthy opinions since 1988 telling prosecutors to stop the misconduct, the record shows justices are more than willing to forgive these mistakes and uphold death sentences.

        The high court has reversed one case for prosecutor error in the past 12 years. In 1993, the Supreme Court ordered a new Cuyahoga County trial for Thomas Michael “Mike” Keenan, who was sentenced to die for stabbing Anthony Klann to death.

        Records show the prosecutor frequently encouraged jurors to be as outraged by the crime as he was. At one point, he took out a knife and slammed the blade into a table.

        Justice Paul E. Pfeifer says he and other justices often find themselves stuck between a prosecutor's bad conduct and overwhelming evidence of a defendant's guilt.

        “The cases that have troubled me the most are the ones in which the prosecutor got really fired up over rhetoric — in cases that really are a slam dunk,” he says.

        Chief Justice Moyer says the Supreme Court also should shoulder some blame for not doing enough to rein in prosecutors.

        “We better stop complaining about it if we're not going to do something about it,” he says. “It's pretty basic.”

        Although the court ordered a new trial for Mr. Keenan, Justice Pfeifer says he was not surprised that a second jury also sentenced the man to die.

        “If we had reversed a couple (death sentences) where they were closer cases,” Justice Pfeifer says, “that's harder to live with.”
       

Prosecutors on defense
       

        Mr. Allen and his predecessor as prosecutor, Ohio Treasurer Joe Deters, are quick to point out the Supreme Court has not overturned a single Hamilton County death penalty. The high court has yet to make its opinion known in the Elwood Jones case, and eight others await oral argument.

        Mr. Allen says his office is doing everything it can to follow the high court's direction. He and Mr. Deters, however, say it's hard to know for sure what is proper and what isn't in these cases.

        “Many times it's difficult to figure out where the line is drawn,” Mr. Allen says. “We seem to find out only by the Supreme Court telling us.”

        Mr. Deters says the court's definition of misconduct has changed over time. He says prosecutors were careful to make arguments they thought the Supreme Court found acceptable in another case.

        He referred to a 1992 Supreme Court opinion concerning a Trumbull County trial. In that case, Danny Hill was sentenced to die for the 1985 sexual assault and beating death of a 12-year-old boy.

        In that case the high court waived objections to 14 questionable comments that Mr. Hill cited in his appeal because defense lawyers never objected to them. Mr. Deters says comments he and other prosecutors made in later death penalty cases were similar to those used in that case.

        Mr. Deters says his office was surprised to find out later that they were improper.

        “The rules should stay consistent,” he said.

        The justices, he adds, never get to see cases in which an accused murderer walks or is acquitted on a technicality. Mr. Deters says those experiences make prosecutors more determined to win.

        “You don't leave things in your briefcase,” Mr. Deters says. “How do you say to a dead person's family, how do you tell them why I didn't talk about that?”

        Justice Moyer says he thinks a statute governing death sentence hearings has always been clear. And he says the court has tried to share that interpretation with prosecutors several times.

        “I know we have not abruptly changed the law,” he says. “We've written more about (prosecutor misconduct) because we've seen more of it.”
       

Angry victims
        When these problems do overturn or help delay death sentences, they leave a trail of frustrated and angry people — the victims' surviving friends and family members.

        Madge Burton, president of a support group for crime victims, says she's waited more than 15 years for Rhett DePew to die for the deaths of her two daughters and granddaughter.

        “One of the most destructive things that can happen in your life is the murder of your family members,” Ms. Burton says. “The next most destructive thing for a family is stringing them along for 15 years.

        “He signed a 22-page confession to the crime, and told exactly how he did it,” she says of Mr. DePew. “We know he stabbed them over 50 times.”

        Ms. Burton says judges should pay more attention to the crime and a defendant's guilt and worry less about what a prosecutor said.

        “No statement made by any prosecutor can outweigh the terrible things these people have done,” Ms. Burton says. “Where are the rights of my children?”

- Clouded cases
Criticized cases
Death penalty process remains slow and unsteady



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