Death Penalty Errors

The repeal of the death penalty in Nebraska last month was described by Andrea Lyon in the New York Daily News as a ‘Nixon-visits-Red-China moment’: in over 40 years no other conservative state has abolished the death penalty. Libertarian-minded conservatives formed a critical part of the vote in Nebraska, helping to oppose those who took the traditional Republican ‘tough on crime’ stance.

Nebraska’s difficulty in procuring the drugs for executions has given impetus to this alternative conservative view of the death penalty, thrusting its arguments center stage. Marc Hyden from Conservatives Concerned About the Death Penalty explains:

 “[The death penalty is] not pro-life because it risks innocent life. It’s not fiscally responsible because it costs millions more dollars than life without parole… this is just another big government program that’s really dangerous and expensive but doesn’t achieve any of its goals.”  

In Ohio – also conservative – concerns could well be even greater than in Nebraska. Ohio experienced the embarrassment of a botched execution last year (Dennis McGuire’s prolonged and apparently agonizing death when given an experimental drug combination); this precipitated Ohio’s current execution moratorium. The steady stream of exonerations from Ohio’s death row – 9 altogether, with 4 in the last 3 years – supports the worry that innocent people are being executed; Terry Collins, former Director of the Ohio Department of Correction and Rehabilitation, has admitted that this is statistically likely (at 2.45 of video clip).

The case of Jeffrey Wogenstahl, an Ohioan who has maintained his innocence steadfastly while on death row, should grab the attention of concerned conservatives. His case features the most common characteristics of wrongful homicide convictions: perjury/false accusation, official misconduct, false/misleading forensic evidence, and unconvincing eyewitness accounts. His trial was marked by what a judge later called ‘plain and plentiful’ prosecutorial misconduct*; and extensive, significant evidence was withheld from the jury. But because the lengthy appeals system reviews only legal processes, this patchwork of anomalies has been ignored: Jeff awaits execution next year. His case is a sorry example of how the state can get things wrong.

Ironically, a quite different government mistake may yet provide Jeff with a new trial: incredibly, it seems that he was tried in the wrong state. With the murder location unknown, and the victim’s body discovered just across Ohio’s south-western border, Jeff’s murder trial should have been conducted in Indiana.

No doubt for Ohio this revelation will be yet another embarrassment; no doubt concerned conservatives will cite this as proof that the government’s death penalty program has failed. But for Jeff this particular mistake is welcome. He should be granted a new trial; and an effective defense lawyer should be able to finally lay bare the deadly errors that propelled Jeff onto death row 22 years ago.

*Justice Karen Moore, United States Court of Appeals for the Sixth Circuit, Jeffrey Wogenstahl v Betty Mitchell, Warden, February 2 2012
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