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County prosecutors responded to the legal recommendations released by Ohio’s Death Penalty Task Force earlier this month by criticizing the work of the Task Force as anti-death penalty and biased. Their outrage appears to center on recommendations that would curtail prosecutors’ discretion in seeking the death penalty, such as restricting eligibility to certain types of murders and requiring a panel of retired prosecutors to assess whether capital charges should be brought in each case.

But what the prosecutors don’t mention in their 49-page dissenting report on the Task Force’s recommendations is that the prosecutors chosen to sit on the Task Force did not show up for some of the meetings where these recommendations were voted on.

A citizen observer who looked through the minutes of the Task Force meetings noticed that one prosecutor stopped turning up altogether after March 2012:

Ted DoubleU (Ohio_cat_named_Ted)

I have been following the news about this task force for some time. When I went on the Supreme Court’s website to look at who attends these meetings, I noticed a pattern. One prosecutor on the task force has not been to a meeting since March 2012. I am of the mindset that decisions are made by those who show up. http://www.supremecourt.ohio.gov/Boards/deathPenalty/minutes/default.asp

2013-08-14 15:04:08.0

Observers who attended the meetings in-person confirmed for The Open File that prosecutors appointed to the Task Force missed meetings and, though it was made clear weeks in advance which recommendations would be voted on, asked for a re-vote on recommendations they didn’t like that had been approved in their absence.

This was confirmed by an August 2013 article from The Columbus Dispatch:

County prosecutors want a new vote on two significant legal recommendations by Ohio’s Death Penalty Task Force, arguing that their side of the debate wasn’t adequately heard because two prosecutors were absent.

Hamilton County Prosecutor Joseph Deters, a Republican, and Trumbull County Prosecutor Dennis Watkins, a Democrat, are vocal death-penalty supporters who missed the June 13 meeting of the task force.

John Murphy, executive director of the Ohio Prosecuting Attorneys Association, wrote last month to James Brogan, a retired federal judge who leads the task force, asking that the votes be reconsidered at the panel’s next meeting, which is today.

“Our request is based simply on the fact that our side of the debate was not sufficiently represented because of the absence of both Mr. Deters and Mr. Watkins,” Murphy wrote. “The votes were close, and might well have gone the other way if our side had been fully represented. The issues are of great importance, and should not turn on who happened to be in attendance at the meeting.”

When Judge Brogan took the request to the Task Force, they turned it down. No explanation for the absence of the prosecutors was given in The Columbus Dispatch article, and it’s not clear if one was given to the Task Force. The guidelines that establish the Task Force allow members to join by phone or video conference if they are unable to attend a meeting in person.

Of course it’s natural that prosecutors who feel their discretionary powers are under threat would smear attempts to make the system more fair and accurate as “anti-death penalty”. The prosecutors’ fears are valid, since plenty of problems with the administration of the death penalty in Ohio need to be addressed by reigning in prosecutorial discretion (see the American Bar Association’s assessment, which spurred the formation of the Task Force, here. “Moreover, in cases in which capital punishment can be sought, prosecutors have enormous discretion in deciding whether or not to seek the death penalty. The character, quality, and efficiency of the whole system are shaped in great measure by the manner in which the prosecutor exercises his/her broad discretionary powers.” p. 127).

But in actual fact, the Task Force was created by the decidedly not anti-death penalty Chief Justice of the Supreme Court of Ohio in conjunction with the President of the Ohio State Bar Association to specifically recruit a cross-section of criminal justice actors to examine the state’s capital punishment system. The bi-partisan list of appointees which includes eight judges, four prosecutors and one public defender certainly doesn’t scream anti-death penalty.

If the recommendations of the Task Force would really “establish a series of procedural and legislative nightmares that would render Ohio’s death penalty inoperable,” as the prosecutors suggest in their report, that likely says more about Ohio’s death penalty system than the supposed bias of the Task Force.

The Task Force’s Final Report is available here.
The County Prosecutors’ Minority Report is available here.

A searchable database of the recommendations provided by the Supreme Court Task Force is available here.


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