Governor Kasich’s Duty

Posted on March 12, 2016 by Justice for Willie

Pope Francis made a personal appeal to Catholic leaders worldwide last month: he asked them to make “a courageous and exemplary gesture” by not carrying out executions during the Church’s current “Holy Year of Mercy”. The Pope wants all people – guilty as well as innocent – to have “the possibility of rehabilitating themselves”. 

The Catholic Governor of Ohio, Governor John Kasich, probably took little notice of the Pope’s plea. For pragmatic reasons (difficulties procuring lethal injection drugs) there will be no executions in Ohio this year. It is also known that Governor Kasich distances himself from his spiritual leader’s position on the death penalty:

“I’m… a secular official, right? I’m also the governor. Now, it doesn’t mean that my faith doesn’t influence me. But I have a job to do as administrator of the state of Ohio.”

The Governor justifies his pro-death penalty stance by citing the justice and closure that he believes executions bring to the grieving families of murder victims. His argument is flawed. Many family members of murder victims come to find that the death penalty does not help them. For instance, immediately after the Oklahoma City bombing most of the victims’ families and survivors demanded the death penalty for those responsible; but now most of them believe this was a mistake.

Melinda Dawson†, whose mother was brutally murdered in Barberton, Ohio in 1998, goes further: she believes that prosecutors use the death penalty for political gain only. Her theory could explain the motivation of some prosecutors to secure death sentences even when evidence is highly questionable, as in the case of Jeffrey Wogenstahl. In other words, the death penalty may in itself increase the risk of wrongful convictions.

Sister Helen Prejean, a Catholic nun, knows about the death penalty better than Governor Kasich and other Catholic officials who theorize about the death penalty from a safe distance:
“ In grasping the “meaning” of state killings, I had one advantage… I was there, close up to the anguish and terror of the condemned and their grieving mothers.”

Sister Helen understands that the death penalty creates many more victims: state sponsored killing traumatizes family and friends of the convicted, and often also jury members, prison staff, and attorneys. 

If Governor Kasich does badly in the Ohio Republican Presidential Primary next week, he may have more time to reflect. If so, he would do well to consider not only the Pope’s words, but also those of Ohio’s Catholic bishops, who recently declared:
“Other states and other countries have found effective ways to protect society by justly punishing offenders through non-lethal means. Ohio should do the same.”

Yes, Governor Kasich. It is time to do your religious, moral and secular duty. The death penalty in Ohio must end.

†A video clip of Melinda Dawson is available here, at the Ohioans to Stop Executions website.

 

 

Posted in capital punishment, Catholicism, criminal justice, death penalty, Jeff Wogenstahl, Jeffrey Wogenstahl, Ohio, Pope Francis, USA, Wogenstahl | Tagged , , , , , , , , , , , , , , , , , , , , | 1 Comment

DNA Tests: Errors Occur

Posted on February 28, 2016 by Justice for Willie

In recent years we have come to think of DNA testing as a ‘gold standard’ that can convict or exonerate. But forensics experts urge caution. William Thompson declares:
‘DNA tests are not now and have never been infallible.  Errors in DNA testing occur regularly. DNA evidence has caused false incriminations and false convictions, and will continue to do so.’

Nathan Robinson explains that, as with all forensics, DNA testing arose from the need to prosecute criminals; as a result science’s core principles of neutrality and doubt are compromised. He adds,
‘Analysts themselves can be fallible and inept; the risk of corruption and incompetence is no less pronounced simply because the biology has been peer-reviewed.’

And the authors of The Truth Machine* remind us,
‘Police and prosecutorial motives and practices … come into play when DNA evidence is treated less as an abstract source of “truth” than as material that is collected, handled, labeled, and possibly planted.’
They conclude:
‘“DNA” does not transcend mundane, organizational practices or the possibilities that reside in stories of a crime’.

We should bear those caveats in mind when considering Jeffrey Wogenstahl’s case. DNA testing on a tiny speck of blood from the inside of a rear car door handle was linked to the victim in his case. Yet this minute blood speck is inconsistent with the prosecution’s theory of the case (that Jeff murdered a child, Amber Garrett, in his car).

Alongside the DNA evidence we should consider what The Truth Machine* authors call ‘the possibilities that reside in stories of [the] crime’.  And those ‘stories’ are: prosecutorial misconduct, unconvincing evidence, and the withholding of significant exculpatory evidence. They point not to Jeff’s guilt, but to his innocence.

*Michael Lynch, Simon A. Cole, Ruth McNally and Kathleen Jordan   The Truth Machine: the Contentious History of DNA Fingerprinting (The University of Chicago Press, 2008), p. 345
**Michael Lynch, Simon A. Cole, Ruth McNally and Kathleen Jordan   The Truth Machine: the Contentious History of DNA Fingerprinting (The University of Chicago Press, 2008), p. 346

 

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Vast Inequities

Posted on February 11, 2016 by Justice for Willie

The findings of the report, “The Impact of Race, Gender, and Geography on Ohio Executions”, are damning. The report finds no evidence that the death penalty in Ohio deters homicide. On the contrary, the few counties that produced executions between 1976 and 2014 had homicide rates that were “dramatically” higher than in non-executing counties.

The geographic disparities are alarmingly wide. For instance, Hamilton County, where Jeffrey Wogenstahl was convicted and sentenced, is one of only 4 counties* responsible for over half of the state’s executions; conversely, 69 counties produced no executions at all. Hamilton County’s execution rate of 0.6 executions per 100 homicides is much higher than the rates in the other two most populous counties.**

The geographic anomalies echo a shocking national pattern highlighted by US Supreme Court Justice Breyer***, who refers to studies that cite the following as the causes of geographical disparity: the power of the local prosecutor, depleted defense resources, racial composition within the county and political pressures. North Carolina law professor, Robert J. Smith, is unequivocal about what has been happening nationally:
“When you start to look underneath the counties and ask, ‘Who is actually prosecuting these cases?’ you realize in most of the counties, it’s one or a limited number of prosecutors”.
Presumably the same is likely to apply to the state of Ohio.

It is not just different geographic outcomes that are inconsistent in the implementation of the Ohio death penalty: there are also differences of gender and race. A female victim is three times more likely than a male victim to attract a death sentence; and a white victim is nearly three times more likely than a black victim to attract a sentence of death.

The racial bias extends to convictions: African American and Latino people are more likely than white people to receive the death penalty in Ohio. Although homicides usually occur within racial groups, “[w]hites are likely to face the death penalty only for within-race crimes, and Blacks for within-race and cross-race crimes.”

The Rev. Jack Sullivan Jr., executive director of Murder Victims Families for Reconciliation, rightly denounces the racial discrepancies as showing that “white lives matter and black lives don’t”. 

The Ohio report does not indicate why racial disparity occurs, but a 2014 Sentencing Project report**** is pertinent. It discusses studies which find that white people significantly overestimate the proportion of crime committed by African Americans, and associate African American and Latino names with negative, rather than positive words. It states that white Americans working in criminal justice are not immune from such bias; their prejudice is transferred into many decisions that detrimentally impact people of color at every stage of the criminal justice system.

Whatever the reasons for the geographic, gender and racial disparities, the Ohio report is starkly clear in its conclusion:
“Vast inequities characterize the implementation of capital punishment in Ohio.”

This is reason enough for Ohio to reconsider. It is time for the death penalty to go.

* Just four out of Ohio’s 88 counties (Lucas, Summit, Cuyahoga and Hamilton) – or just 5% – are responsible for more than half of the state’s 53 executions.
** “Hamilton has the highest execution rate [of the three most populous counties, Cuyahoga, Franklin and Hamilton] at .60 executions per 100 homicides: this is more than double the execution rate in Cuyahoga, and nearly nine times the rate in Franklin County.”
***Glossip et al v. Gross et al, Breyer, J, dissenting, P.12 – 13
**** Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies

 

Posted in capital punishment, death penalty, executions, gender, geography, Jeff Wogenstahl, Jeffrey Wogenstahl, Ohio, race, The Impact of Race, Gender, and Geography on Ohio Executions, USA | Tagged , , , , , , , , , , , , , , , , , , , | 2 Comments

Hopeful Signs

Posted on January 28, 2016 by Justice for Willie

Things are relatively quiet for Jeffrey Wogenstahl on Ohio’s death row at the moment. This should be celebrated.  It was not long ago that Ohio was second only to Texas in carrying out executions; but during the two years of 2015 and 2016 there will have been no state administered deaths. There have also been fewer death sentences in the state: these have dropped by 77% since 2010, with a corresponding 92% rise in sentences of life without the possibility of parole in the same period. And if Ohioans are asked which sentence they prefer for people convicted of murder, a majority now prefer life without parole over the death penalty. 

Such trends mirror a national move away from the death penalty and executions. The Death Penalty Information Center (DPIC) 2015 Year End report headlines:
“Fewest Executions, fewest death sentences and fewest states employing the death penalty in decades.”

To be sure, Ohio is still trying to procure its named execution drug, sodium thiopental, but its attempts are becoming more and more desperate. No compounding pharmacy has been willing to provide the drug, despite a controversial law, passed by the Ohio General Assembly a year ago, which shrouds execution personnel and procedures in secrecy.  Now Ohio officials have hired an attorney at FDAImports.com to help them navigate the law regarding drug importation. Doug Berman, a death-penalty expert, believes Ohio is unlikely to gain approval in the foreseeable future. He adds:
“they’re kind of desperate for any means possible to discharge what they see as their obligations under existing law.” 

Last year a Republican State Rep, Niraj Antani, joined Democrat Nickie Antonio in trying to abolish the death penalty in Ohio. Alongside Antonio’s “familiar — and persuasive — points about a system broken beyond repair” is Antani’s “conservative case for repealing the death penalty”. Antani’s frustration at the government’s presumption that it will not make errors when administering the death penalty may appeal to other Republicans, who form the majority in Ohio. When Jeff’s case comes to their attention the case for abolition will be strengthened: only a broken and error-ridden system could process his highly questionable case to result in lengthy incarceration and an execution date.

Thus, as 2015 turned to 2016, there were hopeful signs that Ohio may before too long take note of its citizens’ wishes.  We are hopeful that it will soon give up the struggle to find drugs and finally abolish the death penalty.

 

Posted in capital punishment, death penalty, death sentences, execution drugs, executions, Jeff Wogenstahl, Jeffrey Wogenstahl, lethal-injection drugs, Ohio, Uncategorized, USA | Tagged , , , , , , , , , , , , , , , , , , , | Leave a comment

Judges Don’t Care

Posted on January 17, 2016 by Justice for Willie

According to Terry Collins, the former Director of the Ohio Department of Correction and Rehabilitation, “[judges don’t] care whether there is new evidence whether the person is guilty or not guilty”.*  Jeffrey Wogenstahl’s experience appears to support this. For instance, just before Christmas 2015 the Hamilton County Court of Appeals dismissed the significance of new evidence that FBI expert hair testimony given at Jeff’s trial was flawed.

The court’s decision neglected to address the pivotal role of the prosecutor in presenting the hair testimony as inculpatory: after improperly vouching for the expert, the prosecutor conveyed not the slightest doubt to the jurors when he told them,
“He said that is Wogenstahl’s hair”.

In failing to challenge the prosecutor’s false certainty about the hair’s origin, the appeal court judges circumvented the need to evaluate the impact of his erroneous statement on the jury, in a case where other evidence was exceedingly thin.

The judges also avoided any pressure to consider the new evidence in the light of known ‘plain and plentiful’, ‘wholly improper’† prosecutorial misconduct at Jeff’s trial. “If this was yet another example of misconduct”, they could have asked, “how deep did it go?” They might then have questioned why the single pubic hair was found on the victim’s underwear a week before the trial, but had not been present a year previously, when the underwear had been thoroughly examined, scraped and closely inspected by a Hamilton County forensic specialist.

The Hamilton court’s ruling will be appealed. It is our sincere hope that the Ohio Supreme Court will expose the flaws in the lower court’s decision. Jeff deserves no less.

*See 14.35 of video clip on Ohioans to Stop Executions website:
“The one thing that I always asked, all 33 times I went there, ‘Did the system get it right?’ And everybody says, ‘Well, Mr Collins, this guy’s had 27 judges look at this case’.
And you know what? Those 27 judges didn’t care about anything other than was the i’s dotted and the t’s crossed. Was the procedures granted? They didn’t care whether there was new evidence whether the person was guilty or not guilty – they didn’t care about any of that. They cared about whether the process was carried out.
I don’t know for a fact that anybody that I ever witnessed be executed was not guilty. But statistical data would say that there’s a good probability of that.”
†Descriptions of the prosecution’s misconduct by federal judge, Judge Karen Moore. See State v. Wogenstahl. 07-4285. United States Court of Appeals for the Sixth Circuit. February 2012. Pages 48-49 (Moore, J., concurring). uscourts. Web. August 24 2014
Posted in capital punishment, criminal justice, death penalty, FBI flawed forensics, FBI hair testimony, Hamilton County, injustice, Jeff Wogenstahl, Jeffrey Wogenstahl, Ohio, prosecutorial misconduct, Uncategorized, USA | Tagged , , , , , , , , , , , , , , , , , | Leave a comment

The Root of Unfairness

Posted on December 31, 2015 by Justice for Willie

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.

 

Posted in capital punishment, criminal justice, death penalty, Hamilton County, Jeff Wogenstahl, Jeffrey Wogenstahl, Joe Deters, judges, Ohio, prosecutor misconduct, Rayshawn Johnson, Uncategorized, USA | Tagged , , , , , , , , , , , , , , , , , , , , , | Leave a comment

Evolving Standards of Decency

Posted on December 16, 2015 by Justice for Willie

There has been very good news on Ohio’s death row this month: one of the inmates, Rayshawn Johnson, has had his death sentence set aside. Even Chief Justice Maureen O’Connor, who in 2006 dissented in a similar case, was swayed this time by evidence that showed the cumulative impact of many mitigating factors, including the abuse that Johnson suffered in childhood.

From infancy Johnson suffered appalling abuse: he was often put in a closet and given alcohol, prescription drugs and heroin. Justice Paul Pfeifer wrote that he was “doomed from the start due to his upbringing.” 

When he was young, and still very close to his childhood abuse – he killed a neighbor.

The Ohio Supreme Court’s decision, and especially Justice O’Connor’s apparent change of heart, may well reflect the same evolving standards of decency that has already made it illegal to execute juveniles and people with intellectual disability.

Hamilton prosecutor, Joe Deters, who also prosecuted Jeffrey Wogenstahl’s case, originally criticized the court’s ruling, saying that he had never had a death sentence reversed before, and complaining that one of the judges openly opposes the death penalty. However, he later accepted Johnson’s new sentence of life without the possibility of parole.

David Dow, a Texan death penalty defense lawyer and law professor, points out that 80% people on death rows throughout the country had a dysfunctional childhood (similar to Johnson’s). He advocates spending state money to support children who are at risk of abuse, from as early as their mothers’ pregnancies right up to any involvement they may have in the juvenile justice system. His proposal does not just aim to reverse the state’s failure to support vulnerable children: he suggests that such investment would actually prevent three out of every four crimes.

Dow maintains that in the long term this strategy would also save money:
“Some… people… might be old enough to remember the guy on the old oil filter commercial. He used to say, “Well, you can pay me now or you can pay me later.” What we’re doing in the death penalty system is we’re paying later. …for every 15,000 dollars that we spend intervening in the lives of economically and otherwise disadvantaged kids in those earlier chapters, we save 80,000 dollars in crime-related costs down the road.”

Such a proposal comes too late for Johnson and the victim of his crime, but Johnson’s resentencing at least acknowledges that childhood abuse was a significant mitigating factor in his case. Joe Deters might not like Johnson’s move from death row, but he should get used to it. Evolving standards of decency demand no less. Rayshawn Johnson should live.

 

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A Necessary Motion

Posted on November 30, 2015 by Justice for Willie

Jeffrey Wogenstahl’s most recent motion sent to the Ohio Supreme Court does not focus on Jeff’s innocence, but on whether his trial court had jurisdiction to try him. Jeff maintains his innocence, but the jurisdiction motion must also be filed. The law is clear about the issue contained in the motion: Jeff should not have been tried for murder by Ohio. The state’s case postulated that Amber Garrett was murdered in Indiana; legal precedent has established that the murder trial should therefore have been in that state, and not in Ohio.

This is not Jeff’s preferred route to retrial – he would like a court to accept his claim of innocence directly and grant him a retrial on that basis. However, US law appears to have no problem with sending an innocent man to die. As Emily Bazelon explains,
“19 years of Supreme Court decisions based on the Antiterrorism and Effective Death Penalty Act have fundamentally narrowed the scope of habeas review [the appeals process], from a fight over the merits of a claim of innocence or fairness to one over narrow process issues”.

Justice Sotomayor, a US Supreme Court judge, agrees:
“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.”

And in Jeff’s case one can sense the uneasiness of a federal judge, Judge Karen Moore, at being unable to probe more deeply into the impact of extensive prosecutor misconduct:
“I concur in the judgment that habeas corpus relief is unavailable to petitioner under the stringent AEDPA standards that currently apply.”

Until this legal problem is fixed, Jeff needs to pursue any legal route that may eventually allow him to clear his name and walk free. The end must justify the means.

 

Posted in AEDPA, Antiterrorism and Effective Death Penalty Act, capital punishment, death penalty, Jeff Wogenstahl, Jeffrey Wogenstahl, Ohio, Uncategorized, USA | Tagged , , , , , , , , , , , , , , , , , , , | 1 Comment

Many Positives

Posted on November 9, 2015 by Justice for Willie

Death penalty opponents, including Jeffrey Wogenstahl, on Ohio’s death row, can take heart from some recent important developments regarding the death penalty:

In Ohio execution dates have been postponed because lethal injection drugs cannot be procured, despite government attempts to shroud execution personnel and procedures in secrecy.  Last week leading Ohio newspapers called for the execution moratorium to be used productively. Even the Columbus Dispatch, previously pro death penalty, was questioning whether the death penalty is “Worth the trouble”. It called for transparency by government in its approach to executions, and added “stifled transparency” to its list of “reasons to consider abandoning the death penalty”. And cleveland.com demanded a full examination of Ohio’s death penalty law:

“Rather than waste time trying to find new sources of lethal-injection drugs — or contemplating alternate forms of execution, such as electrocution, hanging, the gas chamber or even the firing squad, all of which some states have embraced as optional measures — Ohio needs to search its collective soul for the right thing to do.”

We can only agree.

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Another New Execution Date

Posted on October 20, 2015 by Justice for Willie

Jeffrey Wogenstahl was handed a letter on Monday telling him his execution date has been postponed from November 16 2016 to September 13 2017. 

At first the news seemed wonderful –the pressure on his lawyers is decreased. Today came the backlash, the realization that he will have yet another ten months on death row. For someone who claims innocence, and has already been on death row for 24 years, an extra ten months can feel like an eternity. Jeff will need time to adjust.

Eleven other Ohio death row inmates were also given delayed dates: as a result there will be no executions in 2016. The Ohio Department of Rehabilitation and Correction hopes the delay will allow it to locate a source of sodium thiopental and pentobarbital for lethal injections. Other states have also struggled to find and use their chosen execution drugs. For instance, earlier this month Oklahoma and Arkansas halted executions because of legal challenges about drugs.

The focus on drugs detracts from the issue that Jeff would really like to raise: his innocence. Peripheral issues, associated with the execution drugs, or whether or not his trial court even had jurisdiction to try him, seem irrelevant. But the law must be followed. By a devious route he moves closer to having his voice heard. He should be of good cheer.

Posted in capital punishment, death penalty, death row, executions, Jeff Wogenstahl, Jeffrey Wogenstahl, lethal-injection drugs, Ohio, USA, wrongful convictions | Tagged , , , , , , , , , , , , , , , , , , | Leave a comment