Supreme Court of Ohio Clerk of Court - Filed June 26, Case No IN THE SUPREME COURT OF OHIO CASE NO

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1 Supreme Court of Ohio Clerk of Court - Filed June 26, Case No IN THE SUPREME COURT OF OHIO CASE NO 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 ( ) Cuyahoga County Prosecutor Assistant Federal Public Defender joseph_wilhelm@fd.org CHRISTOPHER D. SCHROEDER ( ) Assistant Prosecuting Attorney VICKI R. A. WERNEKE ( ) cschroeder@prosecutor.cuyahogacounty.us Assistant Federal Public Defender vicki_werneke@fd.org The Justice Center, Courts Tower 1200 Ontario Street, 8th Floor JILLIAN S. DAVIS ( ) Cleveland, OH Research and Writing Attorney (216) jillian_davis@fd.org Counsel for Appellee Office of the Federal Public Defender Northern District of Ohio Capital Habeas Unit 1660 West Second Street, #750 Cleveland, OH (216) (216) (fax) Counsel for Appellant

2 IN THE SUPREME COURT OF OHIO Case No 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 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. ). 1

3 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, (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.) 2

4 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, , 513 N.E.2d 267, (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 and (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 3

5 avoid death penalty, CNN, July, 28, 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 (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. 4

6 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. ( 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. 5

7 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 Back then, Mr. Otte was a youthful and immature person. State v. Otte, 74 Ohio St. 3d 555, 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. 6

8 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 , 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.) 7

9 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, 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. 8

10 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, [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, 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 9

11 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 ( ) Assistant Federal Public Defender joseph_wilhelm@fd.org VICKI RUTH ADAMS WERNEKE ( ) Assistant Federal Public Defender vicki_werneke@fd.org JILLIAN S. DAVIS ( ) Research and Writing Attorney jillian_davis@fd.org Office of the Federal Public Defender Northern District of Ohio Capital Habeas Unit 1660 West Second Street, #750 Cleveland, OH (216) (216) (fax) Counsel for Appellant 10

12 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 26 th day of June, /s/ Joseph E. Wilhelm JOSEPH E. WILHELM ( ) Assistant Federal Public Defender Counsel for Appellant 11

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