Magistrate’s ruling on state death penalty procedures won’t affect Rhoden case for now


By Tom Corrigan - tcorrigan@aimmedimidwest.com



Berman

Berman


According to the latest information listed on the website of the Pike County Court of Common Pleas, none of the six members of the Wagner family currently charged with various crimes in connection with the infamous 2016 Rhoden family massacre are due back in court for any pretrial hearings until sometime in March.

Four of the Wagner family suspects are charged with multiple counts of aggravated murder, each carrying death penalty specifications.

Even though their next court appearances are in some instances more than a month away, defense attorneys for the various suspects have been busy filing pretrial motions.

At the same time, a recent upper court decision characterizing Ohio’s method of administering the death penalty as “cruel and unusual” led still-new Ohio Gov. Mike DeWine to postpone at least temporarily the planned execution of Ohio inmate Warren Henness, who was scheduled to be executed Feb. 13.

The new date of execution has been moved to Sept. 12, according to the governor’s office. For now, at least, the magistrate’s ruling and DeWine’s promised appeal of that decision, should have no effect on the Rhoden case, according to The Ohio State University Moritz College of Law professor Douglas Berman, advertised by OSU as a nationally recognized expert on the death penalty and related issues.

U.S. Magistrate Judge Michael R. Merz issued his ruling Jan. 14. The ruling reads in part:

“…executing (Henness) by Ohio’s current three-drug protocol will certainly or very likely cause him severe pain and needless suffering because of the dose of midazolam intended to be used will not render him sufficiently unconscious as to prevent him from suffering the severe pain caused by injection of the paralytic drug or potassium chloride or the severe pain and needless suffering caused by pulmonary edema from the midazolam itself…

“… this is not a result with which the Court is comfortable. In 2017, the Court heard extensive evidence that midazolam was not achieving the intended result of blocking the severe pain caused by the second and third drugs…

“…we have good evidence that midazolam will cause the ‘waterboarding’ effects of pulmonary edema. If Ohio executes Warren Hennes under its present protocol, it will almost certainly subject him to severe pain and needless suffering. Reading the plain language of the Eighth Amendment, that should be enough to constitute cruel and unusual punishment.”

“That entire issue should have no impact on the way the (Rhoden) case is prosecuted,” Berman said, noting death penalty issues likely will not be argued until the very end of the various cases.

According to Berman, DeWine was under no obligation to block the Feb. 13 execution but decided to do so with Merz’s opinion in mind. A press release from DeWine’s office simply states Henness’ execution was delayed because of Merz’s opinion. The release does specifically note the opinion will be appealed. The release goes on to say DeWine directed the Ohio Department of Rehabilitation and Correction to assess the state’s current options for execution drugs and examine possible alternative drugs.

No timetable was given for the appeal of Merz’s decision.

According to information released by the Pike County Court of Common Pleas, all four of the Wagner family members directly charged with the Rhoden murders have filed a pretrial motion claiming Ohio’s death penalty laws are unconstitutional. Berman said it is highly unlikely a relatively small court such as Pike County’s would end up ruling Ohio’s death penalty system unlawful. He added defense attorneys are introducing the issue of the constitutionality of the death penalty now in order to legally be allowed to bring up the issue later in the trial should that become necessary. Berman added if they did not introduce the issue now, defense attorneys would be unable to raise it later even if future court rulings address the death penalty issue in Ohio or the country.

As already noted, there have been numerous, in fact, dozens of pretrial motions already filed by the various defense lawyers. One more notable motion asks for a change of venue in the case of Angela Wagner, one of the family members directly charged with the murders. Early on observers seemed to expect most, if not all, of the Wagner family suspects to request a change in venue. So far, Angela Wagner appears to be the only suspect to do so.

Wagner’s motion reads in part: “a change of venue is necessary in this case because extensive and ongoing pretrial publicity makes it presumptively impossible to seat an impartial jury in this County.”

The motion goes on to talk about “media saturation” and contamination of the potential jury pool.

“The self-evident conclusion is that this County has been so saturated with the facts underlying this case it is impossible for defendant to receive a fair trial before (a) jury composed of impartial persons who learned of the case only to the evidence properly admitted during trial,” the motion concludes.

Wagner’s next currently scheduled date in court is March 20.

There are two members of the Wagner family charged in connection with the murders but not charged with the murders themselves. Prosecutors allege suspects Rita Newcomb, 65, and Fredericka Wagner, 76, lied to a Pike County grand jury in order to protect members of their family. The two older women, both grandmothers in the Wagner family, are the only two suspects in the Rhoden case to be released on bond. However, both have been under electronically monitored house arrest since their release from jail. During pretrial hearings earlier this month, both women also asked for the conditions of their house arrests to be altered.

Fredericka Wagner wants to be able to visit Crystal Springs, a nursing home in Piketon, where court records show she was at some point employed. Her attorney stated Wagner would go to the business on an as-needed basis. She also requested the right to attend church services. Newcomb has been living at the home of her elderly mother in order to care for her. Her attorney requested she be allowed to visit her farm some 12 miles away in order to take care of the animals housed there, including up to four horses and eight dogs and puppies. A son was said to have been taking care of the animals to date. Pike County Prosecutor Rob Junk immediately objected to Newcomb’s request.

“It starts to defeat the purpose of house arrest,” he told Pike County Court of Common Pleas Judge Randy Deering, who made no immediate decision on the requests to modify the house arrest of either woman but asked defense attorneys to supply details as to why their clients needed to leave their homes.

Ultimately, Deering also gave prosecutors until Jan. 31 to respond to defense requests regarding house arrest conditions. As of Tuesday, judging from information listed on the court of common pleas website, prosecutors had not yet responded.

Berman
https://www.portsmouth-dailytimes.com/wp-content/uploads/sites/28/2019/01/web1_bermanFEATURED-300×3001.jpgBerman

By Tom Corrigan

tcorrigan@aimmedimidwest.com