Embed Size (px)
Citation preview
1
IN THE SUPREME COURT OF OHIO
STATE OF OHIO, : Case No. 2017-200
Appellee, :
-vs- :
MAURICE MASON, : :
Appellant, :
BRIEF OF AMICUS CURIAE OHIO ASSOCIATION OF CRIMINAL DEFENSE
LAWYERS IN SUPPORT OF APPELLANT
BRENT W. YAGER (0033906) KORT GATTERDAM (0040434)*
Marion County Prosecuting Attorney CARPENTER LIPPS & LELAND LLP
134 East Center Street 280 Plaza, Suite 1300
Marion, Ohio 43302 280 North High Street
Phone: (740) 223-4290 Columbus, Ohio 43215-7515
Fax: (740 223-4299 Phone: (614) 365-4100
E-mail: [email protected] Fax: (614) 365-9145
E-mail: [email protected]
COUNSEL FOR APPELLEE *Counsel of Record
STATE OF OHIO TODD ANDERSON (0066346)
127 East Center Street
Marion, Ohio 43302
Telephone: (740) 382-3221
Facsimile: (740) 382-5864
E-mail: [email protected]
COUNSEL FOR APPELLANT
MAURICE MASON
JEFFREY M. GAMSO (0043869)*
*Counsel of Record
ERIKA B. CUNLIFFE (0074480)
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113
(216) 443-7583
E-mail: [email protected]
E-mail: [email protected]
COUNSEL FOR AMICUS CURIAE
On Appeal from the
Marion County Court of
Appeals, Third Appellate
District
Case No. 9-16-0034
Death Penalty Case
Supreme Court of Ohio Clerk of Court - Filed September 29, 2017 - Case No. 2017-0200
2
TABLE OF CONTENTS
Page
STATEMENT OF FACTS ........................................................................................................... 2
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW ................................................... 2
Proposition of Law: Ohio’s Death Penalty Scheme Is Unconstitutional in Violation of the
Sixth and Fourteenth Amendments and Pursuant to the Decision of the U.S. Supreme Court
in Hurst v. Florida, 577 U.S. ___, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). ............................ 2
CONCLUSION ........................................................................................................................... 16
CERTIFICATE OF SERVICE ..................................................................................................... 18
3
TABLE OF AUTHORITIES
Cases
Apprendi v. New Jersey, 530 U.S. 466, 494, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ......... 3, 5, 8
Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004) .......................... 6
Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) ........................... 8, 17
Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980) ............................... 8
Harris v. United States, 536 U.S.545, 567, 122 S.Ct. 2406, 153 L.Ed.2d 524 ( 2002) .................. 9
Hurst v. Florida, 577 U.S. __ , 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) ............................... passim
Johnson v. Texas, 509 U.S. 350, 359, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993) ........................ 8
Jones v. United States, 526 U.S. 227, 119 S.Ct. 12125, 143 L.Ed.2d 311 (1999).......................... 8
Lockett v. Ohio, 438 U.S. 586, 597–98, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) ................... 8, 17
Maynard v. Cartwright, 486 U.S. 356, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988) ....................... 8
Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) ...................................... 3
State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319 ........................................ 15
State v. Roberts, 110 Ohio St. 3d 71, 2006-Ohio-3665, 850 N.E.2d 1168 ................................... 14
State v. Storch, 66 Ohio St.3d 280, 291, 612 N.E.2d 205 (1993) ................................................. 17
Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) .............................. 3, 7
Statutes
R.C. 2929.03 ................................................................................................................... 2, 5, 13, 15
Other Authorities
Akhil Reed Amar, America’s Constitution: A Biography (2005)………………………………....7
Bryan A. Stevenson, The Ultimate Authority on the Ultimate Punishment, 54 ALA. L. REV.
1091, 1140 (2003)........................................................................................................................ 8
John G. Douglass, Confronting Death: Sixth Amendment Rights at Capital Sentencing, 105
COLUM. L. REV. 1967 (2005) ................................................................................................... 7
Ronald F. Wright, Rules for Sentencing Revolutions, 108 YALE L.J. 1355, 1373 (1999) ............ 7
Susan R. Klein & Jordan M. Steiker, The Search for Equality in Criminal Sentencing, 2002 SUP.
CT. REV. 223, 262–65 ................................................................................................................ 8
Welsh S. White, Fact-Finding and the Death Penalty: The Scope of a Defendant’s Right to Jury
Trial, 65 NOTRE DAME L. REV. 1, 10–11 (1989) ................................................................... 7
Constitutional Provisions
Sixth Amendment, United States Consitutiton ....................................................................... 2, 5, 6
1
INTEREST OF AMICUS CURIAE
The Ohio Association of Criminal Defense Lawyers (OACDL) is an organization of over
600 dues-paying attorney members. Its mission is to defend the rights secured by law of persons
accused or convicted of the commission of a criminal offense; to foster, maintain and encourage
the integrity, independence and expertise of criminal defense lawyers through presentation of
accredited Continuing Legal Education programs; to educate the public as to the role of the
criminal defense lawyer in the justice system, as it relates to the protection of the Bill of Rights
and individual liberties; and to provide periodic meetings for the exchange of information and
research regarding the administration of criminal justice. In support of its mission, OACDL is a
frequent contributor of amicus briefs in the Supreme Court of Ohio and in the District Courts of
Appeals.
OACDL has a particular interest in death penalty law because of the unique importance
of capital cases, because “death is different in kind from any other punishment imposed under
our system of criminal justice,” Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 49 L.Ed.2d
859 (1976) (Stewart, J., plurality opinion). Recognizing the singular nature of capital cases and
capital punishment, OACDL is the major provider in the state of required training for lawyers
accepting appointments to represent indigent defendants in capital cases. The importance of
OACDL’s role in the development and evaluation of Ohio’s death penalty law has been
recognized by the appointment of two representatives from the organization to serve on the
Supreme Court/Ohio State Bar Association’s Joint Task Force to Review the Administration of
Ohio’s Death Penalty.
OACDL members have litigated death penalty cases in this state from pre-indictment
stages through state and federal courts and clemency proceedings and through the moments of
execution. They have litigated the constitutionality of Ohio’s death penalty law in state and
2
federal courts. Through experience, training, and interest, OACDL is particularly qualified to
provide guidance on the application of Hurst v. Florida, 577 U.S. ___, 136 S.Ct. 616, 193
L.Ed.2d 504 (2016), to Ohio’s law.
STATEMENT OF FACTS
Amicus accepts and adopts the Statement of the Case and the Facts as set forth in the
merit brief of appellant, Maurice Mason.
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW
Proposition of Law: Ohio’s Death Penalty Scheme Is Unconstitutional in Violation of the Sixth and Fourteenth Amendments and Pursuant to the Decision of the U.S. Supreme Court in Hurst v. Florida, 577 U.S. ___, 136 S.Ct. 616, 193 L.Ed.2d 504
(2016).
In Hurst v. Florida, 577 U.S. __ , 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), with
only a single dissent,1 the U.S. Supreme Court explicitly held: “The Sixth Amendment
requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A
jury’s mere recommendation is not enough.” Id. at 619.
Under Ohio’s capital sentencing scheme a jury’s vote for death is no more than a
recommendation. A death sentence cannot be imposed unless and until a judge
determines what specific mitigating factors were proved by a preponderance of the
evidence, and then finds by proof beyond a reasonable doubt that the aggravating
circumstances proved outweigh those mitigating factors. “Absent such a finding by the
court or panel, the court or the panel shall impose” a life sentence. R.C. 2929.03(D)(3)
1 Justice Breyer did not join the 7-Justice majority opinion but concurred in the
judgment. Rather than agreeing that the Sixth Amendment requires that a jury rather than
a judge make all findings of fact before a death sentence may be imposed, he would have
held that the Eighth Amendment required that the jury actually impose a death sentence.
As relevant to Ohio’s death penalty scheme, it is a distinction without a difference.
3
(emphasis added).
The holding of Hurst should not have been a surprise. It represented no epiphany
by the Court. Rather, the ruling grew from an uninterrupted series of opinions spanning
nearly two decades through which the Supreme Court has vigorously and consistently
repeated and then expanded a basic, bright-line rule mandated by the Sixth Amendment:
“[A]ny fact that ‘expose[s] the defendant to a greater punishment than that authorized by
the jury’s guilty verdict’ is an ‘element’ that must be submitted to a jury.” Id. at 621,
(quoting Apprendi v. New Jersey, 530 U.S. 466, 494, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000)). In light of this jurisprudence, a jury “finding” only meets constitutional
standards if it is unanimous and grounded on proof beyond a reasonable doubt. See
Apprendi, 530 U.S. at 498 (Scalia, J. concurring) (charges against the accused, and the
corresponding maximum exposure he faces, must be determined “beyond a reasonable
doubt by the unanimous vote of 12 of his fellow citizens”) (emphasis in original).
The Court first applied the rule of Apprendi to capital cases in Ring v. Arizona,
536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). A decade before Apprendi, the
Court had held that Arizona’s capital sentencing scheme did not offend the Sixth
Amendment because the judge’s findings were sentencing considerations rather than
elements. Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990).
Ring rejected that analysis. “Apprendi’s reasoning is irreconcilable with Walton’s
holding in this regard.” 536 U.S. at 589.
Where a factual finding is a necessary precursor to an enhanced or increased
sentence, such as a death sentence, there is no distinction between “elements” of the
crime and “sentencing factors.” Apprendi, 530 U.S. at 494. The rule predates the
4
republic.
Any possible distinction between an “element” of a felony offense and a
“sentencing factor” was unknown to the practice of criminal indictment, trial by
jury, and judgment by court as it existed during the years surrounding our
Nation’s founding. As a general rule, criminal proceedings were submitted to a
jury after being initiated by an indictment containing “all the facts and
circumstances which constitute the offence, . . . stated with such certainty and
precision, that the defendant . . . may be enabled to determine the species of
offence they constitute, in order that he may prepare his defence accordingly . . .
and that there may be no doubt as to the judgment which should be given, if the
defendant be convicted.” J. Archbold, Pleading and Evidence in Criminal Cases
44 (15th ed. 1862) (emphasis added). The defendant’s ability to predict with
certainty the judgment from the face of the felony indictment flowed from the
invariable linkage of punishment with crime. See 4 Blackstone 369-370 (after
verdict, and barring a defect in the indictment, pardon, or benefit of clergy, “the
court must pronounce that judgment, which the law hath annexed to the crime “
(emphasis added)).
Id. at 478-479 (footnote deleted).
Arizona’s capital scheme violated Apprendi because in that state, after a jury
verdict of guilt, a death sentence could not be imposed unless the judge determined at a
hearing “before the court alone” the existence of at least one aggravating circumstance.
“Ring could not be sentenced to death, the statutory maximum penalty for first-degree
murder, unless further findings were made.” Ring, 536 U.S. at 592. Had the judge not
made those findings, Ring would have gotten a life sentence. Id. at 597.
Florida’s capital sentencing law differed from Arizona’s in only one relevant
respect. Before a Florida judge would make the findings that an aggravating
circumstance existed and was sufficient to outweigh any mitigating factors, the jury
would proffer an “advisory sentence.” Hurst, 136 S.Ct. at 620 (quoting Fla. Stat. §
921.141(2)). The Court “granted certiorari to resolve whether Florida’s capital
sentencing scheme violates the Sixth Amendment in light of Ring. . . . We hold that it
does.” Id. at 621.
5
Like the sentencing scheme the Supreme Court scrutinized in Hurst, Ohio’s
capital sentencing statute provides only for a jury sentencing recommendation in a death
penalty case. Although our statute does not use the term “advisory sentence,” that is
exactly what occurs when a jury recommends death. No death sentence may be imposed
based on that recommendation. Rather R.C. 2929.03(D)(3) separately and additionally
requires judicial fact-finding and, thereafter, capital sentencing verdicts by jurists acting
independently. Yet, as Apprendi and its progeny make clear, under the Sixth Amendment,
“any fact that increases the penalty for a crime beyond the prescribed statutory
maximum” qualifies as an element that “must be submitted to a jury, and proved beyond
a reasonable doubt.” Apprendi, 530 U.S. at 490.
In this case, a Marion County Common Pleas judge, applying the plain language
of Hurst to Ohio’s death penalty statute, rightly found that our law has the same
infirmities as the Florida law. Like Florida’s capital scheme, then, Ohio’s capital scheme
violates the Constitution’s Sixth Amendment. Accordingly, the judge barred the
prosecution from seeking the death penalty in Maurice Mason’s case. This Court should
affirm that decision.
The Supreme Court’s Developing Sixth Amendment Jurisprudence and
Ohio’s Death Penalty Scheme
Hurst reflects an evolution in the Supreme Court’s Sixth Amendment
jurisprudence, particularly with respect to how that Court has come to define what
constitutes an element. Before Apprendi and Ring, the Court held in Walton v. Arizona
that the weighing sentencing scheme Arizona then used was compatible with the Sixth
Amendment because the additional facts found by the judge were sentencing
considerations rather than “elements of the offense of capital murder.” 497 U.S. at 649.
6
Ring overruled that holding of Walton. 536 U.S. at 589. If there was any lingering doubt
Hurst flatly eliminated it.
Any finding that must be made to extend the possible maximum sentence is,
according to the Sixth Amendment, an element. Ring, supra; Blakely v. Washington, 542
U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004).
In an Ohio death penalty case, a defendant is not eligible for death unless the state
proves to a jury that the aggravating circumstance or circumstances outweighs mitigation
beyond a reasonable doubt. Absent that specific jury finding, the maximum statutory
sentence is a life sentence. Thus, the finding is, by definition, an element. But even with
that jury finding the maximum statutory sentence is life. Only if the state also and
separately proves to the court that the aggravating circumstance or circumstances the jury
found outweighs beyond a reasonable doubt whatever mitigating factors the judge
independently finds may a death sentence be imposed. Thus, the finding by a judge that
death is the appropriate punishment is, by definition, an element.
1. Juries play an essential role in our justice system
The Hurst decision and the line of cases that led up to it recognized that juries are
a fundamental component in our justice system. Historically, defendants did not receive
the death penalty unless juries, in their discretion and without reconsideration by judges,
voted to impose it – and up until the last hundred and fifty years or so the death penalty
was common for most felonies. Accordingly, the jury was seen as especially important
because a defendant’s life was often in the balance. In most jurisdictions, a defendant
would not suffer the ultimate punishment unless twelve members of the community
deliberated together and unanimously concluded that should be so.
7
From the beginning of our nation’s history, the jury’s role as the sentencer in
capital cases “was unquestioned.” Walton v. Arizona, 497 U.S. 639, 710–11, 110 S. Ct.
3047, 111 L. Ed. 2d 511 (1990) (Stevens, J., dissenting) (quoting Welsh S. White, Fact-
Finding and the Death Penalty: The Scope of a Defendant’s Right to Jury Trial, 65
NOTRE DAME L. REV. 1, 10–11 (1989)) (internal quotation marks omitted); see also
Ronald F. Wright, Rules for Sentencing Revolutions, 108 YALE L.J. 1355, 1373 (1999).
The jury’s role as sentencer originates from the fact that historically capital trials were
not the bifurcated enterprises they have become. Originally, “[t]he question of guilt and
the question of death both were decided in a single jury verdict at the end of a single
proceeding conducted as an adversarial trial.” John G. Douglass, Confronting Death:
Sixth Amendment Rights at Capital Sentencing, 105 COLUM. L. REV. 1967 (2005); at
1972.
Putting sentencing authority in the hands of jurors, rather than judges, made good
sense to the Constitution’s framers. Unchecked by a jury, a judge might be
tempted – quite literally – to go easy on his wealthy friends. (Permanent
Magistrates would generally be easier targets to bribe than jurors whose identifies
would not be known long in advance.) Federalist, 83. Particularly in cases where
government officials had committed crimes against the citizenry, judges acting
alone might be overly inclined to favor fellow government officers. Thus Article
III of the Constitution promised that local citizens who had felt the brunt of these
outrages would not be displaced by judges willing to try the matter on their own,
or even by juries remote from the scene of the crime.
Amar, America’s Constitution: A Biography, 237 (2005).
As the number of offenses warranting a death sentence waned and prison
sentences of various lengths took their place, judicial sentencing became more prevalent.
In most of the states that continued to impose the death penalty, however, the discretion
to impose that sentence remained or ultimately returned to juries. Bryan A. Stevenson,
The Ultimate Authority on the Ultimate Punishment, 54 ALA. L. REV. 1091, 1140
8
(2003); see also Johnson v. Texas, 509 U.S. 350, 359, 113 S. Ct. 2658, 125 L. Ed. 2d 290
(1993); Lockett v. Ohio, 438 U.S. 586, 597–98, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978);
Susan R. Klein & Jordan M. Steiker, The Search for Equality in Criminal Sentencing,
2002 SUP. CT. REV. 223, 262–65.
In the wake of the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238,
92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), death penalty schemes became bifurcated
proceedings directed first at guilt/not guilt, followed, if necessary, by a sentencing phase.
The goal in fashioning such a sentencing scheme was to encourage individualized
sentencing and to narrow the class of offenders eligible for the death penalty. Godfrey v.
Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980) and Maynard v.
Cartwright, 486 U.S. 356, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988). As capital
sentencing developed after Furman, the high court initially concluded that judicial
sentencing was not problematic. Over time, and particularly in the last 20 years, that
view has dramatically changed.
2. Apprendi and its Progeny
Between Walton and Hurst, the Supreme Court’s Sixth Amendment jurisprudence
has transformed. The Court hinted at change in Jones v. United States, 526 U.S. 227, 119
S.Ct. 12125, 143 L.Ed.2d 311 (1999). The next year, in Apprendi, it mandated that
change, holding that the Fifth Amendment’s Due Process Clause and the Sixth
Amendment’s notice and jury trial guarantees required that “’any fact (other than a prior
conviction) that increases the maximum penalty for a crime must be charged in an
indictment, submitted to a jury, and proven beyond a reasonable doubt.’” Apprendi at
476 (quoting Jones, at 243, n. 6. The Fourteenth Amendment commands the same answer
9
when a state statute is involved. The historical foundation for these principles reaches
down centuries into the common law. While judges in this country have long exercised
discretion in sentencing, such discretion is bound by the range of sentencing options
prescribed by the legislature. Apprendi, supra.
Two years after it decided Apprendi, the Court in Ring struck down a provision of
Arizona’s capital sentencing procedure which allowed the judge rather than the jury to
determine the existence of aggravating factors. Because the aggravating factors were the
“functional equivalent of an element of a greater offense,” Ring, 536 U.S. at 605 (quoting
Apprendi at 495), the Sixth Amendment required that a jury was required to determine
their existence. In Harris v. United States, 536 U.S.545, 567, 122 S.Ct. 2406, 153
L.Ed.2d 524 ( 2002), decided the same day as Ring, the Court noted that “read together,
McMillan [v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)] and
Apprendi mean that those facts setting the outer limits of a sentence and of the judicial
power to impose it are elements of the crime for constitutional analysis.” Id. at 567.
(Emphasis added).
In Harris, the Supreme Court focused on the distinction between the elements of a
crime and factors that influence a criminal sentence. Legislatures define crimes in terms
of the facts that are their essential elements, and constitutional guarantees attach to these
facts. The Court pointed out that:
A crime was not alleged, and a criminal prosecution not complete, unless
the indictment and the jury verdict included all of the facts to which
the legislature had attached the maximum punishment. Any “fact that
. . . exposes the criminal defendant to a penalty exceeding the maximum
he would receive if punished according to the facts reflected in the jury
verdict alone” the Court concluded, would have been, under the prevailing
historical practice, an element of an aggravated offense.
10
Id. at 563, quoting Apprendi, 530 U.S. at 483 (italics sic, boldface added).
Further, the Harris Court explained:
If the grand jury has alleged, and the trial jury has found, all the facts
necessary to impose the maximum, the barriers between government and
defendant fall. The judge may select any sentence within the range, based
on facts not alleged in the indictment or proved to the jury -- even if those
facts are specified by the legislature, and even if they persuade the judge
to choose a much higher sentence than he or she otherwise would have
imposed. That a fact affects the defendant’s sentence, even dramatically
so, does not by itself make it an element.
Id. 543-544. (Emphasis added) In other words, according to Harris, a finding which
would persuade the judge to give the maximum, instead of a lesser sentence within the
legislatively established range, is not an element. However, if the finding allowed the
judge to sentence the defendant beyond the maximum otherwise allowed by the
legislature, that finding is an element.
3. Finding a Statutory Aggravating Factor Alone is Insufficient for
Death Sentence
The mere fact that a jury finds that the state proved a statutory aggravator and
may thereby render the defendant death eligible does not come close to satisfying the
Sixth Amendment because that finding does not permit a death sentence. The Supreme
Court specifically addressed such a scenario in the non-capital context in Blakely, supra.
It did not matter, the Court explained, that Blakely’s sentence, though outside the
standard range, was within the 10-year maximum for that class of felonies:
Our precedents make clear . . . that the ‘statutory maximum’ for Apprendi
purposes is the maximum sentence a judge may impose solely on the basis
of the facts reflected in the jury verdict or admitted by the defendant . . . .
In other words, the relevant ‘statutory maximum’ is not the maximum
sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings. When a judge
inflicts punishment that the jury’s verdict alone does not allow, the jury
has not found all the facts ‘which the law makes essential to the
11
punishment,’ . . . and the judge exceeds his proper authority.” Id., at 303,
124 S. Ct. 2531, 159 L. Ed. 2d 403 (emphasis in original) (quoting 1 J.
Bishop, Criminal Procedure § 87, p. 55 (2d ed. 1872)).
542 U.S. at 303 (cited with approval in Cunningham v. California, 549 U.S. 270, 275,
127 S. Ct. 856, 166 L.Ed.2d 856 (2007)).
4. Capital sentencing statute addressed in Hurst
In Hurst, the Supreme Court concluded that “[t]he Sixth Amendment requires a
jury, not a judge, to find each fact necessary to impose a sentence of death.” 136 S.Ct. at
619. In arriving at that conclusion, the Court rejected the Florida scheme because the jury
“does not make specific factual findings with regard to the existence of mitigating or
aggravating circumstances. A Florida trial court no more has the assistance of a jury’s
findings of fact with respect to sentencing issues than does a trial judge in Arizona.” Id.
at 622 (quoting Walton, supra, 497 U.S. at 648).
The Ring Court found Arizona’s capital sentencing statute violated the Sixth
Amendment because, like Florida’s, it required a sentencing judge, rather than a jury, to
find an aggravating circumstance necessary for imposition of the death penalty. Hurst
explained that Ring overruled Walton to the extent that it allowed a sentencing judge
alone to find an aggravating circumstance necessary to impose a death sentence.
Arizona’s enumerated aggravators, Ring said, operated as the functional equivalent of an
element of a greater offense, an enhancement above the basic sentence for the offense.
And the Sixth Amendment required that as a functional element, it had to be found by a
jury. Hurst, 136 S.Ct. at 621.
Florida’s death penalty statute did not require the jury to make specific findings
about mitigating and aggravating factors. Nor did it ask the jury to make any specific
12
findings about how they balanced whatever mitigating or aggravating factors they might
have found. The jury would, simply recommend. It was the judge who had to make the
specific findings and determine whether to follow the jury’s recommendation. That, the
Court concluded, offended the Sixth Amendment.
5. Ohio’s Statutory Scheme
Ohio’s death penalty system suffers from the same constitutional deficiencies as
Florida’s. Like a Florida jury in a capital case, our jury will hear evidence of aggravating
circumstances and mitigating factors. Like a Florida jury, our jury is required to find the
existence of at least one aggravating circumstance before it may render a death
recommendation. And like a recommendation from a Florida jury, a death verdict in
Ohio is no more than a recommendation to the trial judge. As in Florida, a death
sentence in Ohio may be imposed if and only if the trial judge separately makes
statutorily mandated findings.
Here is the sequence. If a jury finds the defendant guilty of aggravated murder
and no more, the defendant cannot be sentenced to death. The only lawful sentence will
be life in prison. If a jury finds the defendant guilty of aggravated murder and at least
one statutory death specification, a death sentence will be a theoretical possibility. But it
remains only a possibility. On that finding still, life remains the only possible sentence.
Next, there will be a penalty-phase trial. At the close of that trial, the jury will
deliberate and determine whether the aggravating circumstance or circumstances it found
at the guilt/not guilt trial outweigh any mitigating factors individual jurors find to have
been proved by a preponderance of the evidence. If so, but only if so, the jury is to
recommend to the judge that a death sentence should be imposed. But that
13
recommendation is not sufficient. Life at that point remains the only possible sentence.
“A jury’s mere recommendation is not enough.” Hurst at 619.
The judge must then, separately and independently, weigh the aggravating
circumstance or circumstances found by the jury at the guilt/not guilt trial against
whatever mitigating factors the judge alone finds to have been proved by a
preponderance of the evidence. If and only if the judge finds that the aggravating
circumstance or circumstances the jury found outweigh the mitigating factors the judge
found, and outweigh them by proof beyond a reasonable doubt, may the judge impose a
death sentence.
The General Assembly set forth set forth how the judge is to proceed.
Upon consideration of the relevant evidence raised at trial, the testimony, other
evidence, statement of the offender, arguments of counsel, and, if applicable, the
reports submitted to the court pursuant to division (D)(1) of this section, if, after
receiving pursuant to division (D)(2) of this section the trial jury’s
recommendation that the sentence of death be imposed, the court finds, by proof
beyond a reasonable doubt . . . that the aggravating circumstances the offender
was found guilty of committing outweigh the mitigating factors, it shall impose
sentence of death on the offender. Absent such a finding by the court or panel,
the court or the panel shall impose one of the [life] sentences on the offender. . . . .
R.C. 2929.03(D)(3).
The weighing is, the statute says, something that “the court finds, by proof beyond
a reasonable doubt.” It is, that is, a “find[ing].” And it is a finding based on evidence,
based on “proof beyond a reasonable doubt.” As a finding measured by evidence and
proof, it is not merely a moral judgment. One cannot prove a moral judgment. Certainly
it cannot be proved with evidence or “reports submitted to the court.” A moral judgment
is not subject to “reasonable doubt.” A moral judgment is not something that one can
“find.”
14
Rather, the result of the weighing process is, necessarily and by the measure set
forth by the General Assembly, a factual finding that: This aggravating circumstance (or
these circumstances) weigh more than those mitigating factors.
Moreover, the judge’s determination of what weight, if any, to give to the
mitigating factors proved by a preponderance of the evidence, like the jury’s prior
determination, requires first that the court find what factors have been so proved. The
jury determined which aggravating circumstance or circumstances were proved during
the initial phase of the trial, and that is what the court must weigh against mitigation. But
there is no determination by the jury for the judge to follow as to what mitigating factors
to weigh. Ohio juries do not specify what mitigating facts they found. In order to weigh
the mitigating factors, the judge must first determine what they are, must find which
mitigating facts were proved by a preponderance of the evidence.
Nor does the judge have any guidance from the jury as to what weight to give to
any aggravating circumstance or what weight to give to a mitigating fact. The jury’s
general verdict remains just that. There is no accompanying explanation. The facts of
weighing, like the mitigating facts to be weighed, are entirely within the judge’s purview
as fact-finder. The sentencing judge is not bound by any finding of the jury. Indeed,
because there are no written findings by the jury, the judge has no idea what the jury
considered or rejected as mitigating facts or how the jury or individual jurors conducted
the weighing process. The judge’s decision is, by statute and by necessity, wholly
independent of the jury’s deliberation and verdict. State v. Roberts, 110 Ohio St. 3d 71,
2006-Ohio-3665, 850 N.E.2d 1168. “The judge alone serves as the final arbiter of
justice in his courtroom, and he must discharge that austere duty in isolation.” Id.at ¶ 160.
15
But the findings the judge makes are the facts that allow a defendant to be
sentenced to die, that allow death to be imposed. As R.C. 2929.03(D)(3) explicitly states,
“Absent such a finding by the court or panel,” the defendant will be sentenced to a life
term. The clear holding of Hurst is that the Sixth Amendment as applied to the states
through the Fourteenth Amendment mandates that only the jury can make those final
findings. The jury’s recommendation will not suffice.
The statute does not require the judge to pay any heed to the jury finding in this
regard, emphasizing the mandated independence of this opinion. It is the judge who
sentences a capital defendant to death, not the jury.
State v. Belton does not control
In State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶¶ 55-60,
this Court said that Hurst had no applicability to Ohio’s death penalty scheme. But the
discussion of Hurst in Belton is of no proper precedential value.
Belton is inapplicable because the issue in that case was altogether different than
the issue here. Belton waived his right to a jury trial and proceeded to enter a guilty plea
before a three-judge panel. He argued in this Court that even after his plea before a panel
he should have been able to have a jury for the penalty-phase trial. The question in that
case was whether Hurst mandated a hybrid proceeding with a plea to a panel followed by
a sentencing recommendation by a jury. Whatever Hurst may mean for Ohio, it certainly
does not mean that. Nor was discussion of Hurst necessary to resolve the question.
Belton’s discussion of Hurst, then, is both inapplicable and pure dicta.
Belton is also unreliable in regard to Hurst and the Sixth Amendment because it
was made without briefing or argument on the issue. Hurst was decided just 14 days
16
before oral argument in Belton. It was proffered by Belton as additional authority just 5
days before the oral argument. And as mandated by this Court’s rules, a party may file
citation to supplemental authority issued after briefing “but shall not file additional
argument.” S.Ct.Prac.R. 16.08.
Moreover, the cases cited by the Court in support of the position that Ohio’s death
penalty system comports with the Sixth Amendment all predate the Supreme Court’s
decision in Hurst. Necessarily, then, they do not address the Sixth Amendment as
explained in that case. Thus, unlike the cases cited in Belton at ¶ 60, Hurst makes clear
that weighing aggravating circumstances against mitigating factors is a factual finding.
See Hurst, 136 S.Ct. at 622 (Florida trial court alone has to find fact that mitigating
circumstances do not outweigh aggravating circumstances).
And the pre-Hurst cases cited in Belton do not, and cannot, overrule the basic
premise of that case: “A jury’s mere recommendation is not enough.” Id. at 619.
CONCLUSION
Amicus understands that Ohio’s capital sentencing system as enacted by the General
Assembly was intended to protect the capitally accused against excessive public passion by
requiring, before a death sentence could be imposed, the even-handed, dispassion of a jurist.
And there have been at least nine occasions where judges in this State have made the specific
finding that aggravating circumstances did not outweigh mitigating factors and overridden jury
recommendations of death.2
There are, perhaps, ways consistent with the Sixth Amendment to secure defendants that
protection the General Assembly understood to be essential to a fair death penalty system. If
2 The most recent override was just last year in State v. Shine, Cuyahoga C.P. No. CR16-
606156 (Dec. 20, 2016).
17
there are, it is up to the General Assembly to find them.
It is, however, this Court’s duty to follow the mandates of the Sixth Amendment as
determined by the United States Supreme Court, even if those views prohibit a sentencing
scheme the Ohio General Assembly requires. See, State v. Storch, 66 Ohio St.3d 280, 291, 612
N.E.2d 205 (1993). As it was after Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d
346 (1972), and after Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), it is
to the General Assembly to provide a fix if one is to be provided.
In the meantime, this Court should recognize that the Court meant what it said. “A jury’s
mere recommendation is not enough.” Ohio’s death penalty scheme is unconstitutional. The
decision of the Third District should be reversed.
Respectfully submitted,
/s/ Jeffrey M. Gamso
JEFFREY M. GAMSO
/s/ Erika B. Cunliffe
ERIKA B. CUNLIFFE
COUNSEL FOR AMICUS CURIAE
OHIO ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS
18
CERTIFICATE OF SERVICE
Copies of the foregoing Merit Brief of Amicus Curiae were sent by e-mail to Brent W.
Yager, Counsel for Appellee State of Ohio, at [email protected], and to Kort Gatterdam,
Counsel of Record for Appellant Maurice Mason, at [email protected] this 29th day
of September, 2017.
/s/Jeffrey M. Gamso
JEFFREY M. GAMSO
COUNSEL FOR AMICUS CURIAE
