Sunday, September 10, 2000

Criticized cases

        Here are the cases in which the Ohio Supreme Court has criticized Hamilton County prosecutors for their conduct in death penalty cases.

1. State vs. Bedford

        Supreme Court decision: Oct. 12, 1988

        Crime: Daniel Lee Bedford was sentenced to die for the 1984 shooting deaths of his ex-girlfriend Gwen Toepfert and her boyfriend John Smith.

        Errors: During the trial, a prosecutor called the defendant “a demon” and his defense “a smoke screen.” Prosecution also mentioned a Georgia case calling capital punishment “an expression of society's moral outrage.”

        Court's comments: “This court has previously disapproved of such a closing argument and we reiterate our caution to prosecutors to avoid such argument.”

2. State vs. Hicks

        Supreme Court decision: May 17, 1989

        The crime: John R. Hicks was convicted for the 1985 smothering death of his 5-year-old stepdaughter, Brandy Green, and for strangling her grandmother, Maxine Armstrong, in a Cincinnati apartment.

        Errors: During the trial the prosecutor told the jury, “We are trying to take this man's life,” and “It is time you sent a message to the community.” The prosecutor also implied that if the jury did not approve the death penalty, the court could not impose consecutive prison sentences for the crimes and that Mr. Hicks would get out on parole when he first became eligible.

        Court's comments: “Questions of punishment have no place in the trial of guilt or innocence. A prosecutor may not call for the jury to convict in response to public demand.”

3. State vs. Combs

        Supreme Court decision: Dec. 18, 1991

        The crime: Ronald Dean Combs was convicted of the 1987 shooting deaths of his girlfriend, Peggy Schoonover and her mother Joan Schoonover in a Cincinnati hotel parking lot.

        Errors: Prosecutor spoke of what the victims must have thought as Mr. Combs confronted them. “Can you imagine the terror of that? A gun right to your head, was she (Joan) thinking about her childhood? Was she thinking about her daughter, "Take me but spare Peggy?' ... Was she thinking of little Joey, "Who's going to take care of him? Grandma is gone. I'm going to be gone. Who's going to raise my little boy?' And then comes the pull of the trigger and she's gone.”

        Court's comments: “By continually referring to what the victims were thinking, the prosecutor engaged in gross speculation.”

4. State vs. Mills

        Supreme Court decision: Jan. 8, 1992

        The crime: James Ethan Mills was sentenced to die for the 1988 shooting death of Marsha Burger, head teller of the First Ohio Savings Bank.

        Errors: In the sentencing argument, the prosecutor quotes George C. Scott in the movie, Patton. “When you put your hand into a pile of goo that just a few moments ago was your best friend's face, you'll know what to do.”

        Court's comments: “An appeal to the jury's sense of outrage and sympathy for the victim is particularly troublesome when made after the jury has already determined the defendant's guilt, and the only remaining task is to decide his fate.”

5. State vs. Hawkins

        Supreme Court decision: June 9, 1993

        The crime: Shawn L. Hawkins was sentenced to die for the 1989 shooting deaths of Diamond Marteen and Jerome Thomas in Mount Healthy.

        Errors: The prosecutor described defense testimony as “incredible” and called one witness' testimony “ridiculous.”

        Court's comments: “Although these remarks by the prosecutor should not have been made, we find no prejudicial error resulting from the isolated incidents.”

6. State vs. Carter

        Supreme Court decision: July 26, 1995

        The crime: Cedric Carter was convicted and sentenced to die for the 1992 shooting death of a United Dairy Farmers clerk, Frances Messinger, during a robbery.

        Errors: Prosecutor misstated certain aspects of Ohio's death sentencing law. He also said “There is no dispute as to (Carter's) convictions. But criminal history deals with a lot of suspicious conduct.”

        Court's comments: “The conduct of the prosecutor in this case, although worthy of criticism, does not rise to the level of reversible error.”

7. State vs. Gumm

        Supreme Court decision: Aug. 30, 1995

        The crime: Darryl Gumm was convicted and sentenced to die for the 1992 sexual assault and beating death of a 10-year-old boy, Aaron Raines, in Lower Price Hill.

        Errors: Prosecutor encouraged jurors to imagine what was going through Aaron's mind. “How many times did he beg them to stop? How many times did he say a little prayer for help? How long did it take before he lost consciousness? And when he did, what were his last thoughts? Was he still asking this man to set him free? Or at this point was he begging to just let him die?”

        Court's comments: “Had objection been made to the prosecutor's invitation to the jury to imagine or speculate on aspects of the case not in evidence (Aaron Raines's final thoughts) a trial court might well in its discretion have sustained that objection.”

8. State vs. Hill

        Supreme Court decision: March 5, 1996

        The crime: Genesis Hill was sentenced to die for the 1991 beating death of his 6-month-old daughter, Domika Dudley.

        Errors: The prosecutor tossed a shirt at Mr. Hill during the penalty phase of the trial. He also told jurors he believed Mr. Hill lied during his testimony.

        Court's comments: “The prosecutor improperly interjected his personal opinion that (Mr.) Hill lied. The prosecutor may well have improperly handled the exhibit by tossing it on the defense table. Yet assuming the toss of the shirt was improper, we find no prejudice to (Mr.) Hill in light of the overwhelming evidence of his guilt.”

9. State vs. Wogenstahl

        Supreme Court decision: March 6, 1996

        The crime: Jeffrey A. Wogenstahl was sentenced to die for the 1991 beating and stabbing death of Amber Garrett, 10.

        Errors: Prosecutor tried to get the jury to imagine what the victim could have been thinking. “What did she say to him? What went through her mind as she felt that knife pressed against her neck? That is something to consider.”

        Court's comments: “We agree with (defendant) that the prosecutor's final closing argument was riddled with improper comments regarding the nature and circumstance of the offense.”

10. State vs. Moore

        Supreme Court decision: Feb. 4, 1998

        The crime: Lee Edward Moore was convicted and sentenced to die for the 1994 kidnapping and shooting death of Chicago businessman Melvin Olinger in Mount Healthy.

        Errors: Prosecutor asked the jury to imagine what Mr. Olinger was thinking. “Think a minute what Melvin Olinger went through during that kidnapping. Maybe there was a moment of hope for Mr. Olinger. You know. "They're going to let me out.'” Prosecutor also said “Can you imagine the abject terror Melvin Olinger has at this point? Was he begging for his life?”

        Court's comments: “Prosecutorial comments continually referring to what the victim was thinking are improper because they ask the jury to speculate on facts not in evidence.”

11. State vs. Clemons

        Supreme Court decision: July 29, 1998

        The crime: Gerald L. Clemons was sentenced to die for the 1995 shooting deaths of Dave Kreamelmeyer, Christine Teetzell and Robert Kinney at an Evendale trucking company.

        Errors: During the trial the prosecutor, called the defendant a “liar” in his testimony and said about the defense: “I know they're just doing their job.” During closing arguments he told jurors he expected the defense attorneys would interrupt him a lot.

        Court's comments: “Prosecutors should be on notice to avoid the comments highlighted here.”

12. State vs. Bobby Shepphard

Supreme Court decision: Dec. 30, 1998

        The crime: Bobby Shepphard was sentenced to die for the 1994 shooting death of drive-through owner Dennis Willhide during a robbery.

        Errors: The prosecutor questioned why the defense did not try to enter a plea of not guilty by reason of insanity.

        Court's comments: “The appellant was free to enter whatever plea he wished and cannot be chastised for doing so.”

13. State vs. Fears

        Supreme Court decision: Sept. 8, 1999

        The crime: Angelo Fears was convicted for the 1997 shooting death of Antwuan Gilliam in Over-the-Rhine.

        Errors: Prosecution tried to put jurors into the thoughts of a witness. “What kind of terror did (Mr. Fears) put into Derrick Frazier's head?” One expert witness is called the defense counsel's “mouthpiece,” who was being paid with taxpayers' money. A prosecutor repeatedly complained to jurors he was not given a defense expert's notes, and commented on how Mr. Fears did not testify on his own behalf.

        Court's comments: “Although we are greatly disturbed by Prosecutor Russell's and Prem's lack of restraint and their willingness to utter such inflammatory remarks, we cannot say that these comments constitute reversible error. If this kind of activity continues, it is just a matter of time before it affects the outcome of a trial.”

14. State vs. Jones

        Supreme Court decision: Pending

        The crime: Elwood Jones was convicted and sentenced to die for the 1994 beating death of a New Jersey grandmother, Rhoda Nathan, in a Blue Ash hotel.

        Alleged errors: Defense attorney Elizabeth Agar argued prosecutors should not have told jurors Rhoda Nathan's life had no more value to Mr. Jones than her necklace pendant. She highlighted comments in which prosecutors described a witness as a “paid defense expert,” and called the defense's strategy “a search for doubt, not a search for the truth.”

        Court's comments: Chief Justice Thomas J. Moyer says in court: “How do we stop prosecutors from engaging in conduct that we tell them time and time again is improper?”

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