in the supreme court of ohio case no. 94-2622 state …gary otte, ) death penalty case)...
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IN THE SUPREME COURT OF OHIO
CASE NO. 94-2622 STATE OF OHIO, ) ) Plaintiff-Appellee, ) ) v. ) ) GARY OTTE, ) DEATH PENALTY CASE ) Defendant-Appellant. ) _____________________________________________________________________________
APPELLANT GARY OTTE’S RESPONSE OPPOSING THE STATE’S MOTION TO SET EXECUTION DATE
_____________________________________________________________________________
TIMOTHY J. McGINTY JOSEPH E. WILHELM (0055407) Cuyahoga County Prosecutor Assistant Federal Public Defender [email protected] CHRISTOPHER D. SCHROEDER (0089855) Assistant Prosecuting Attorney VICKI R. A. WERNEKE (0088560) [email protected] Assistant Federal Public Defender [email protected] The Justice Center, Courts Tower 1200 Ontario Street, 8th Floor JILLIAN S. DAVIS (00672720) Cleveland, OH 44113 Research and Writing Attorney (216) 443-7733 [email protected] Counsel for Appellee Office of the Federal Public Defender Northern District of Ohio Capital Habeas Unit 1660 West Second Street, #750 Cleveland, OH 44113 (216) 522-4856 (216) 522-1951 (fax) Counsel for Appellant
Supreme Court of Ohio Clerk of Court - Filed June 26, 2015 - Case No. 1994-2622
mailto:[email protected]:[email protected]:[email protected]:[email protected]
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IN THE SUPREME COURT OF OHIO
Case No. 94-2622 STATE OF OHIO, ) ) Plaintiff-Appellee, ) ) v. ) ) GARY OTTE, ) DEATH PENALTY CASE ) Defendant-Appellant. ) _____________________________________________________________________________
APPELLANT GARY OTTE’S RESPONSE OPPOSING THE STATE’S MOTION TO SET EXECUTION DATE
_____________________________________________________________________________
On June 19, the State moved to set an execution date for Appellant Gary Otte. The
State’s request should be denied. First, the imposition of the death penalty would be arbitrary in
this case in view of the inconsistency with which Ohio executes persons who are similarly
situated with Mr. Otte. Second, Mr. Otte’s execution would further no compelling government
interest at this point. Third, Mr. Otte is joined in a civil suit in federal court in which he asserts
that Ohio’s method of execution violates the Constitution. This Court should not set an execution
date for Mr. Otte until his civil suit is resolved because troubling problems persist with Ohio’s
method of execution. Indeed, this Court should conclude that troubling problems persist
generally with the application of the death penalty in this state, rendering it unreliable and
unconstitutionally arbitrary. See State v. Keenan, Slip. Opinion No. 2015-Ohio-2482, ¶ 15
(Pfeiffer, J., concurring) (“If [Keenan] had been executed, there would have been no way for the
state to cleanse itself from the awful reality of having executed a person who had not received
his full measure of legal protection. To ensure that that never happens, the General Assembly
should abolish the death penalty.”).
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Ohio’s capital sentencing regime is unconstitutionally arbitrary
“The [Eighth] Amendment must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society.” Atkins v. Virginia, 536 U.S. 304, 311-12
(2002) (quoting Trop v. Dulles, 356 U.S. 86 (1958)). “Capital punishment must be limited to
those offenders who commit a narrow category of the most serious crimes and whose extreme
culpability makes them the most deserving of execution.” Roper v. Simmons, 543 U.S. 551, 568
(2005) (quoting Atkins, 536 U.S. at 319). And as a court of last resort, this Court must rely on its
“own judgment ... on the question of the acceptability of the death penalty [for Mr. Otte].” Id.
(quoting Atkins, 536 U.S. at 319). In view of those guiding principles, Mr. Otte’s execution
would be an unconstitutionally arbitrary and capricious event.
The State argues for an execution date by stressing that Mr. Otte committed a double
homicide. (See State’s Motion at pp. 2-3.) The State then argues that Mr. Otte’s execution is “the
only relief that will bring finality to this case: the setting of an execution date.” (Id. at p. 4.)
Neither argument is persuasive in light of the Eighth Amendment’s evolving standards of
decency—standards that the Cuyahoga County prosecutor has relied on in recent years to
reexamine the necessity of imposing the death penalty even in older cases such as Mr. Otte’s.
In 2013, the Cuyahoga County Prosecutor issued a “Narrative Statement For Billy
Slagle’s Clemency Hearing,” in which the Prosecutor explained:
The Cuyahoga County Prosecuting Attorney has instituted a policy of review in all capital cases, as well past convictions that resulted in a death sentence. This review is conducted under strict standards of current law to ensure that only those aggravated murder cases so heinous and deserving that the facts and evidence have the weight to firmly and unanimously convince a jury of 12 or a judicial panel that the aggravating circumstances outweigh any and all mitigating factors beyond any reasonable doubt. Decisions will realistically consider the higher level of evidence required by state and federal appellate courts to uphold death penalty convictions than other types of crimes.
(Exhibit A, attached, at pp. 2-3.)
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The prosecutor’s policy demonstrates a consistency in the direction of change towards the
infrequent use of the death penalty in Cuyahoga County. See Roper, 543 U.S. at 564, 566. This
direction of change—and the infrequent imposition of the death penalty in more recent
Cuyahoga County cases—were factors that contributed to the prosecutor’s recommendation to
the Governor that Slagle’s death sentence be commuted. (See Exhibit A.)
For example, the prosecutor agreed to plead out Alfred Morales’s capital case following a
remand from the Sixth Circuit. (Exhibit B.) Morales was convicted and sentenced to death for
murdering a child in a calculated, vicious manner. State v. Morales, 32 Ohio St. 3d 252, 252-53,
513 N.E.2d 267, 269-70 (1987). His crime was arguably as bad as Mr. Otte’s.
Another example is the case of Reginald Jells. He was convicted of aggravated felony
murder and kidnaping in Cuyahoga County, and his death sentence was affirmed in this Court.
State v. Jells, 53 Ohio St. 3d 22, 559 N.E.2d 464 (1990). Following reversal on federal habeas,
the prosecutor resolved Jells’s case with a plea that removed the death penalty. (Exhibit C.) Jells
was convicted of kidnapping a woman with a young child and then beating her to death, and his
crime was arguably as bad as Mr. Otte’s.
More recently, the prosecutor agreed to resolve Ariel Castro’s case with a plea, despite
the national notoriety that was created by the chilling factual account of Castro’s crimes. Castro
faced a potential death sentence under Revised Code §§ 2903.01 and 2929.04(A)(7) for the
unlawful termination of a victim’s pregnancy during a kidnaping (and Castro committed multiple
counts of kidnaping). The death penalty is an expression of society’s moral outrage. See Gregg v.
Georgia, 428 U.S. 153, 183 (1976). Castro’s well-publicized crimes doubtlessly invoked great
public outrage and revulsion. Nevertheless, the case was ably resolved by the prosecutor without
efforts to secure a death sentence for Castro. Ashley Fantz, “Ariel Castro agrees to plea deal to
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avoid death penalty,” CNN, July, 28, 2013. Castro’s actions were also arguably worse than Mr.
Otte’s.1
Under the Cuyahoga County Prosecutor’s enlightened policy, several potential capital
murder cases have been ably resolved without resort to the death penalty. In terms of moral
culpability, Mr. Otte is no more execution-worthy than any of the defendants that are discussed
in the above-referenced cases. Ohio’s death penalty thus fails at its most basic level. Ohio’s
death penalty statute putatively narrows the class of capital murders from the larger universe of
all offenders who murder, through the inclusion of the capital sentencing specifications found in
O.R.C. § 2929.04(A). But in considering the actual application of the death penalty in Ohio from
one case to the next, it becomes readily apparent that arbitrariness infects the capital selection
process in this state.
Despite the existence of statutory capital specifications, the actual application of the
death penalty in Ohio is devoid of any rational basis to understand why offenders such as Castro,
Jells, and Morales elude execution while an offender such as Mr. Otte must confront the real
prospect of an execution date, even though he is no more morally culpable. And in view of the
Prosecutors’ willingness to resolve several cases without resort to the death penalty, the State’s
argument that only the death penalty will bring finality in this case rings hollow. (See State’s
Motion at p. 4.)
The State stresses that Mr. Otte committed a double homicide to highlight the
appropriateness of the death sentence that was imposed. But this point fails to rebut Mr. Otte’s
assertion that Ohio’s death penalty regime is arbitrary and unreliable because it fails to genuinely
narrow the class of the most extreme offenders from the rest of the offenders in its actual
1 In 2014, the Cuyahoga County Prosecutor also joined in a recommendation to the Governor to commute the death sentence of Arthur Tyler, who, like Mr. Otte, was convicted of a felony murder.
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practice. Data collected and maintained by the Ohio Public Defender’s Office bears out Mr.
Otte’s claim that Ohio’s capital sentencing regime is arbitrary. This data show that several
former death row inmates—who committed multiple murders—were removed from death row.
The Ohio Public Defender maintains data on “Former Death Row Residents Under 1981
Law” on its website. (http://www.opd.ohio.gov/DPResidentInfo/dp-FormerResidents.pdf.) The
data includes a column for the “Victims’ Race,” and for cases in which there is more than one
victim, an Arabic number, preceding the victim’s race, denotes the number of homicide victims
attributed to the particular offender. A copy of this data is attached to this Response as Exhibit D,
attached, with yellow highlights added to the names of those offenders who had convictions for
killing multiple victims.
Thirteen offenders had their death sentences vacated in state or federal court and were
subsequently removed from death row. (Joseph Zuranski, Theodore Soke, Antonio Brooks,
Tyson Dixon, Ronald Combs, Terrell Yarbrough, Kenneth Green, Rhett DePew, Derrick Evans,
Clifton White III, Frederick Dickerson, Vernon Brown, Wayne Frazier.) Two offenders with
multiple murders had their death sentences vacated by independent appellate sentencing review
in this Court (Lawrence and Claytor). Two convicted death row inmates were either acquitted or
had the charges dismissed following relief in the courts (Charles Tolliver, Dale Johnston). Three
offenders with convictions for multiple murders had their sentences commuted by the Governor
(Rosalie Grant, Kevin Keith, Shawn Hawkins).
This data also shows that seventeen convicted offenders with multiple murder victims
were executed. Discounting Dale Johnston and Charles Tolliver—who were acquitted or had
charges dismissed on remand—the number of multiple murders removed from death row
(eighteen) exceeds the number executed (seventeen).2 Bear in mind that each of those offenders
2 Nine convicted multiple murders died of natural causes or accidental death.
http://www.opd.ohio.gov/DPResidentInfo/dp-FormerResidents.pdf
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were convicted of multiple murders, and they all had their cases putatively “narrowed” by capital
specifications found in the Revised Code.
In reality, Ohio’s narrowing regime functions no better than the unconstitutionally
arbitrary regimes that existed before the Supreme Court’s ban on such arbitrariness was imposed
in Furman v. Georgia, 408 U.S. 238 (1972). To a casual observer of Ohio’s capital sentencing
regime, it would appear that a coin flip, a lightning strike, or the whim of a decision maker
provides the difference between a life sentence and the death penalty for a multiple murderer.
Accordingly, Ohio’s capital sentencing regime is, in practice, arbitrary and capricious in
violation of the Eighth and Fourteenth Amendments. See id.; State v. Wogenstahl, 134 Ohio St.
3d 1437, 981 N.E.2d 900 (2013) (O’Neill, J., dissenting) (opposing execution date because death
penalty is cruel and unusual punishment under “evolved” societal standards; “To date, 17 states
and the District of Columbia have eliminated the death penalty altogether. It is clear that the
death penalty is becoming increasingly rare both around the world and in America. By definition
it is unusual.”).3
Mr. Otte’s execution will serve no legitimate government interest
The often-stated justifications for the death penalty are retribution and deterrence. Neither
retribution nor deterrence can, however, justify this Court setting an execution date for Mr. Otte.
The retributive justification for the death penalty makes little sense in this case because
Mr. Otte is not the same person who committed the murders in 1992. Back then, Mr. Otte was a
youthful and immature person. State v. Otte, 74 Ohio St. 3d 555, 567-68 660 N.E.2d 711, 723
(1996) (“Dr. Sandra McPherson, a clinical psychologist, testified that Otte suffers from
depression, immaturity and alienation, and that he has an IQ in the bottom fifteen percent of the
population. She also testified that Otte has ‘diminished capacity for impulse control’ ….”). Otte 3 Since Justice O’Neill’s dissent in Wogenstahl, Nebraska’s unicameral legislature repealed the death penalty over their governor’s veto.
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was just twenty years old when he committed the murders. Id. at 567, 660 N.E.2d at 723.
Importantly, he was addicted to drugs and alcohol and both of his crimes were fueled by his
addictions. Id. at 568, 660 N.E.2d at 723 (“At the age of ten Otte began using drugs and alcohol.
By fourteen or fifteen he was engaged in poly-substance abuse and major alcohol use.”).
Since the murders, twenty-three years have passed, and with the passage of time, Mr.
Otte has matured significantly. He has become a man of faith. He has been a well-behaved
inmate. He is remorseful. He is not the same person now that he was then. Given his maturity
and the fact that his addictions have been in remission for many years, he would not be a threat
to commit such violent acts now.
In other words, the value of retribution is lost because the Gary Otte that deserved to be
punished—the one who robbed and shot people—no longer exists. This is so because risk factors
that put Mr. Otte on a course to commit a double murder twenty-three years ago no longer exist.
Instead, the Gary Otte of today is a man whose adult life has been lost behind bars because he is
still paying for his drug and alcohol addictions, and the awful crimes that resulted from them.
True retribution is achieved through a sentence of life in prison.4 The retributive value of the
death penalty is simply too attenuated to justify killing a man in this type of case.
As for deterrence, it is doubtful that Mr. Otte’s execution would keep anyone from
committing a murder. Potential capital offenders often face the same issues that put Mr. Otte at
risk for becoming a murderer. As with Mr. Otte persons at risk for offending often have the same
types of risk factors: youth, immaturity, troubled and unstable upbringings, and the crushing
weight of drug and alcohol addictions. And as with Mr. Otte, persons at risk of offending often
have deficits in IQ and impulse control, as well as substance addictions, which may impair
executive brain functions. See id. at 567-68, 660 N.E.2d at 723. Accordingly, such potential 4 As such, the State is simply wrong to claim that only the death penalty can bring finality to this case. (State’s Motion at p. 4.)
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offenders have diminished capacities for mature reasoning and sound judgments, especially
when they are in the throes of a substance addiction. Deterrence is a thin reed on which to rest
the death penalty given that the people who commit murders often have mental health issues,
intellectual disabilities, and backgrounds that are not conducive to creating good social
adjustments and mature decisions.
Mr. Otte is presently litigating claims against Ohio’s method of execution
As the State points out, Mr. Otte has exhausted the regular course of his state and federal
appeals. (State’s Motion at 5.) Mr. Otte is not done litigating, however, as he is presently joined
in a civil suit before Judge Frost in the United States District Court for the Southern District of
Ohio in which he challenges Ohio’s use of lethal injection as unconstitutional. In Re: Ohio
Execution Protocol Litigation, Case No. 2:11-cv-1016 (S. Dist. Ohio). At a minimum, this Court
should stay Mr. Otte’s execution date pending the resolution of his civil suit in federal court.
In Justice O’Neill’s Wogenstahl dissent, he discussed the “chilling” account of the State’s
attempt to execute Romell Broom. 134 Ohio St. 3d 1437, 981 N.E.2d 900 (O’Neill, J.,
dissenting). “Although the executioners spent over two hours attempting to find a vein through
which to administer the lethal injection, they ultimately failed.” Id. “Broom remains on death
row today.” Id.
Since the debacle of Broom’s attempted execution, Ohio drew national attention of the
wrong kind following the State’s execution of Dennis McGuire. See Alan Johnson, “Dennis
McGuire’s execution was not humane, doctor says,” The Columbus Dispatch, Aug. 13, 2014.
“McGuire, 53, gasped, choked, clenched his fists and appeared to struggle against his restraints
for about 10 minutes after [the drugs were administered to him].” Id. “It took 26 minutes for him
to die after the drugs were administered ….” Id. An anesthesiologist provided a sworn statement
attesting that “Dennis McGuire experienced ‘true pain and suffering’ ….” Id.
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After the debacle of McGuire’s execution, Oklahoma had extreme difficulty in executing
Clayton Lockett. See Molly Hennessy-Fiske, Matt Pearce and David G. Savage, “Botched
Oklahoma execution stirs outrage, may bring changes,” Los Angeles Times, Apr. 30, 2014.
“[A]s witnesses watched from a prison viewing gallery in McAlester, executioners injected an
experimental cocktail of lethal drugs into Lockett’s body. The 38-year-old murderer was
supposed to fall asleep before the drugs stopped his heart. Instead, according to officials, one of
Lockett’s veins exploded, sending the inmate into a writhing, gasping fit that ended more than
half an hour later with a fatal heart attack.” Id.
In view of Broom, McGuire, and Lockett, there remains a genuine risk that Mr. Otte
could suffer wanton and unnecessary pain if subjected to Ohio’s method of execution by lethal
injection. Further, a safe supply of drugs for use in lethal injection is also in doubt because Ohio
has resorted to obtaining its drugs from undisclosed, compounding pharmacies. See “Lacking
Lethal Injection Drugs, States Find Untested Backups,” NPR, Oct. 26, 2013; Alan Johnson,
“New law will keep lethal-injection supplier secret,” The Columbus Dispatch, Dec. 20, 2014.
Mr. Otte’s civil law suit has merit in light of all these on-going concerns with lethal injection as
Ohio’s method of execution.
Conclusion
“The Eighth Amendment ‘is not fastened to the obsolete but may acquire new meaning as
public opinion becomes enlightened by a humane justice’.” Hall v. Florida, __ U.S. __, 134 S.
Ct. 1986, 1992 (2014) (quoting Weems v. United States, 217 U.S. 349, 378 (1910)). “The Eighth
Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the
Nation we aspire to be.” Id. The evolving standards of decency that guide this Court’s
understanding of the Eighth Amendment should lead to the inexorable conclusion that the State’s
motion should be denied. Imposition of the death sentence in this case would result in an
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arbitrary and unreliable use of the death penalty. The retributive function of the death penalty is
too attenuated in this case because, like the Eighth Amendment, Gary Otte has also evolved and
matured. And troubling concerns with Ohio’s method of execution remain and should be
addressed in Mr. Otte’s federal civil law suit.
This Court should deny the State’s motion with prejudice. Alternatively, this Court
should, at a minimum, deny the State’s motion until Mr. Otte’s federal civil law suit is resolved.
Respectfully submitted,
/s/ Joseph E. Wilhelm JOSEPH E. WILHELM (0055407) Assistant Federal Public Defender [email protected]
VICKI RUTH ADAMS WERNEKE (0088560) Assistant Federal Public Defender [email protected] JILLIAN S. DAVIS (0067272) Research and Writing Attorney [email protected] Office of the Federal Public Defender Northern District of Ohio Capital Habeas Unit 1660 West Second Street, #750 Cleveland, OH 44113 (216) 522-4856 (216) 522-1951 (fax) Counsel for Appellant
mailto:[email protected]:[email protected]:[email protected]
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CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing APPELLANT GARY OTTE’S
RESPONSE OPPOSING THE STATE’S MOTION TO SET EXECUTION DATE was sent
by ordinary U.S. mail, postage prepaid, to Timothy J. McGinty, Cuyahoga County Prosecutor,
and Christopher Schroeder, Assistant Prosecuting Attorney, The Justice Center, Courts Tower,
1200 Ontario Street, 8th Floor, Cleveland, OH 44113, on the 26th day of June, 2015.
/s/ Joseph E. Wilhelm JOSEPH E. WILHELM (0055407) Assistant Federal Public Defender Counsel for Appellant
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