The Root of Unfairness

Joe Deters, Ohio’s Hamilton County lead prosecutor, is no stranger to unfairness in death penalty cases. In one of his cases, that of Jeffrey Wogenstahl, the misconduct of his own team of prosecutors has been described by Judge Moore as ‘plain and plentiful’ and ‘wholly improper’.

Deters must also know that Judge Moore, a federal judge, noted a further layer of unfairness in Jeff’s case: that it was ‘the stringent AEDPA standards’ that prevented Jeff from having his conviction overturned on the basis of such demonstrably unfair conduct by the prosecution. As US Supreme Court Justice Sotomayor declared last month:
“We are now in a place where a clearly constitutional wrong or one that’s clear enough will still be upheld because AEDPA tells us if it’s not ‘unreasonably’ wrong, it’s OK. Try explaining that to someone in jail or try explaining that to the founding fathers who might have had a very different view of what justice is about.”

Despite Joe Deters’ dubious background, he felt able to object to the overturning of Rayshawn Johnson’s death sentence earlier this month, pinpointing what he described as ‘the root of unfairness’ in Ohio Supreme Court’s Judge O’Neill’s stated opposition to the death penalty. In the light of his own misconduct, Deters’ indignation sounds disingenuous.

If he wishes to promote fairness Deters should examine all aspects of Ohio’s death penalty procedures. The disparity between counties should concern him: his own Hamilton County, with its conservative, pro-death penalty juries, has always produced a disproportionately high number of Ohio’s death sentences. The Ohioans to Stop Executions (OTSE) website notes:
“Hamilton County represents 6.95% of Ohio’s population but produces 19.06% of the state’s death sentences.”

Ohio’s system of electing high court judges should also trouble Deters, as it creates the political pressures cited in July by USA Supreme Court Justices Breyer and Ginsburg (Glossip v. Gross; Breyer, J., dissenting, P 13 -14). Research by Reuters confirms that elected judges reverse death sentences far less frequently than judges who are appointed. The overall reversal rate for appointed USA judges over the last 15 years averaged 26%; for elected USA judges the rate was less than half that (11%); and for elected Ohio judges the rate, shockingly, was lower still (8.7%).

Individual Ohio Supreme Court judges are subjected to immense pressure to uphold death sentences. For instance, one of the dissenting judges in Rayshawn Johnson’s case, Judge French, was applauded during last year’s election campaign in an ad that praised one of her previous votes for death, thus pressurizing her to continue championing death sentences. Set against such pressure, Judge O’Neill’s anti-death penalty stance seems not unfair, but commendable.

Deters, himself an elected official, is under similar pressure to win votes. It is thus logical to conclude that his outburst against Judge O’Neill was merely a cynical and contrived attempt to gain political capital. Far from seeking a solution to unfairness, Joe Deters is its advocate.


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