Capital cases get super due process

By Tom Corrigan - [email protected]

Douglas Berman

Douglas Berman

According to Ohio law there are 10 aggravating factors which can subject a suspect to the ultimate punishment, in other words, the death penalty.

For example, you would be subject to capital punishment if you went after an elected official or if you committed a murder for hire.

In the instance of the infamous Rhoden family murders, the trials for which will be entering the initial phases over the next few weeks – see related story published in the Daily Times on initial arraignments – the most applicable aggravating factor may be one involving “a course of conduct” leading to the murder or murders.

The above are the thoughts, at least, of The Ohio State University Moritz College of Law professor Douglas Berman, a nationally recognized expert on the death penalty and related sentencing issues.

As most know by now, Scioto County’s northern neighbor Pike County is facing four capital cases in connection with the Rhoden family murders which took place there in 2016. Six suspects, including four charged with aggravated murder with death penalty specifications, were arrested Nov.13.

In speaking to the Daily Times on death penalty cases in general, Berman said capital cases begin with an indictment, the same as any other criminal case, the only exception being there is only one crime, aggravated murder, which can make a suspect subject to the death penalty.

“In addition to having to be found guilty of aggravated murder, certain additional aggravating factors need to be found at trial and then there is a separate penalty hearing, where… there is a weighing of aggravating factors against mitigating factors,” Berman continued.

Judging from his comments, the penalty hearing, or penalty phase, along with consideration throughout the trial of so-called aggravating or mitigating factors, may be the most unique parts of a capital case.

Seemingly hinting at what might be presented as the aggravating factor in the Rhoden case, at a press conference announcing the arrests of six suspects in the massacre, Attorney General and Governor-elect Mike DeWine talked extensively about how the murders were allegedly well-planned and carefully carried out. Each of the four main suspects face charges relating to taking part in a criminal conspiracy.

According to Berman, even before a capital case can get underway, the court must ensure all attorneys involved, both for the defense and plaintiffs, are death penalty certified. Berman said that basically means lawyers must have a certain level of experience.

“You can’t appoint a lawyer who is one day out of law school,” Berman continued.

Additionally, each side must have at least two death penalty certified attorneys as well as other legal help as mandated by statute. As there are four suspects facing the death penalty in this instance, should they decide to seek separate trials which officials have indicated is likely, up to eight death penalty certified attorneys – plus staff – may be needed to defend the suspects who may or may not ask for public defenders. If the defendants do ask for public defenders, speaking previously, local officials have indicated Pike County could not provide sufficient certified attorneys but would have to seek counsel from outside the immediate area.

Berman went on to describe some other differences between capital cases and normal criminal cases. “There are a host of special rules, some of which are required by the Constitution and have been incorporated into Ohio statute and provide for what some have called ‘super due process.’”

That idea of super due process incorporates the requirement for specially qualified attorneys on both sides of the courtroom.

Regarding mitigating factors, Berman said there is a very long list. Defense attorneys can introduce evidence ranging from a suspect’s allegedly troubled upbringing to any lack of prior criminal offenses. Another mitigating factor can revolve around whether the suspect was directly involved in the crime. In this instance, in other words, did the suspect actually shoot the gun that killed one or more victims? Berman anticipates questions of who shot who will become factors as the trial, or trials, move forward.

From the prosecution’s point of view, Berman said, the idea is to convince the jury the aggravating factors outweigh any mitigating factors and the perpetrator or perpetrators deserve the ultimate punishment. Of course, the defense will argue exactly the opposite.

“The defense attorneys’ job will be to come up with a story that makes their client seem to have more mitigating factors,” Berman continued. “Everything and anything can and will be brought up in that penalty phase. There is nothing is off the table.” He talked about it often being absolutely essential suspects receive a mental health evaluation paid for by the prosecuting jurisdiction. Such evaluations seem likely to be only one of the many costs associated with prosecuting the four capital cases.

The subject of cost is one which has come up again and again since the Rhoden suspects were arrested. A Pike County official estimated that price tag between $2 million and $4 million. What factors make these cases so expensive? Setting aside specifics such as mental health evaluations, to Berman, most of the answer is the so-called super due process suspects in capital cases are required to receive. He later noted capital suspects have a large number of appeal avenues available to them.

“I think relatively few people would say capital suspects shouldn’t have those protections,” Berman said, including that super due process.

Berman added in some instances, including this one, one question possibly raised could be whether it is worth pursuing death penalty cases which easily could tax a smaller jurisdiction’s finances and manpower, possibly resulting in non-prosecution of lesser cases. Berman was part of a task force put together a few years ago which included DeWine and looked at how to address funding issues for smaller jurisdictions facing capital cases.

As reported previously in the Daily Times, incoming Ohio Attorney General Dave Yost and two Pike County state legislators are floating an idea intended to permanently solve the funding issue. The two legislators expect to introduce their measure early next year.

For his part, in summing up, Berman said prosecutors in capital cases can sometimes offer suspects life in prison as opposed to the death penalty in attempts to save both time and money. He did not offer a concrete opinion as to whether that will happen in the case of the Rhoden murders.

Douglas Berman×3001.jpgDouglas Berman

By Tom Corrigan

[email protected]