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311 13 Capital Litigation in the Northern District Alison K. Guernsey The history of death penalty litigation in the Northern District of Ohio is both long and short. Situated in one of the most prolific capitalsentencing states in the nation, the district has grappled with the cases of over one hundred defendants sentenced to death under state law since the establishment of Ohio’s modern death penalty statute in 1981. Despite the frequency of the litigation of cases originating at the state level, however, to date there have been only two federal capital cases tried in the Northern District, both initiated in 2006 and tried in 2007, and neither resulting in a sentence of death. In a third capital case, the potential for a death sentence was eliminated pretrial as a result of the defendant’s cognitive and behavioral impairment . This chapter looks at the history of both types of death penalty litigation in the district—those three cases initiated at the federal level as well as litigation originating from state capital convictions and reviewed through petitions for a writ of habeas corpus. 312 Alison K. Guernsey History of Federal Death Penalty Statutes To understand capital litigation in the Northern District of Ohio, it is necessary to understand the authority from which it stems. Although not explicitly authorized by the U.S. Constitution, there were clear indications in the text of the Bill of Rights that the drafters envisioned—and perhaps simply assumed—the existence of a criminal justice system able to impose the ultimate penalty.1 With this backdrop, in 1790 the first Congress enacted the Act for the Punishment of Certain Crimes against the United States, which mandated death for those convicted of one of several enumerated crimes.2 As opposition to the mandatory imposition of death grew, however, Congress reduced the number of deatheligible offenses to five in 1897, and instead of requiring a death sentence for certain offenses, it provided the jury absolute and unguided discretion to impose such a punishment.3 Although Congress amended the federal death penalty provisions several times at the beginning of the twentieth century, as the 1960s civil rights era progressed citizens and legislators increasingly raised concerns over the disparate impact that the imposition of the death penalty had on various poor and minority populations. These concerns resulted in several challenges to capital punishment ’s use and administration before the U.S. Supreme Court. The landmark case of Furman v. Georgia,4 for example, involved an appeal on behalf of three defendants who had been sentenced to death by state juries. All three argued that capital sentencing was arbitrary and capricious and that its imposition and administration violated the Eighth and Fourteenth Amendments to the U.S. Constitution. In nine separate opinions, by a vote of 5 to 4, a majority of the Supreme Court held that all capital punishment statutes that provided juries with complete and unguided sentencing discretion to decide which individuals should live or die could result in arbitrary sentencing and amounted to cruel and unusual punishment. Furman not only invalidated scores of state death penalty statutes but also rendered unconstitutional Congress’s 1897 act. Importantly, Furman did not declare the use of the death penalty per se unconstitutional ; instead, the Supreme Court focused on the problem of unfettered jury discretion. Responsive to the Court’s concerns, several states and Congress began immediately amending their now invalid statutes in an attempt to strike the appropriate balance in a discretionary sentencing regime. Four years later, in Gregg v. Georgia,5 the Supreme Court upheld several of these new death penalty statutes that instituted a variety of “guidelines” for the sentencer to follow 313 Capital Litigation in the Northern District when deciding whether to impose death. These statutes allowed for the introduction and consideration of mitigating and aggravating circumstances and required that the judge or jury find and identify at least one statutory aggravating factor before imposing a death sentence. Gregg also imposed several lasting procedural requirements, including the bifurcation of the guilt and sentencing phases of a capital proceeding. Although Congress did not act as swiftly to amend the federal death penalty statute, in 1988 it authorized the option to seek the death penalty in a number of crimes associated with the drug trade.6 Congress expanded the list of deatheligible offenses to sixty in 1994 with the enactment of the Federal Death Penalty Act (FDPA).7 Federal Death Penalty Cases: Moonda, Galan, and Lewis Despite the lengthy...

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