Top Ohio court blamed for death penalty delays

4/3/2001

COLUMBUS - Attorney General Betty Montgomery yesterday pinned part of the blame for delays in carrying out the death penalty on Ohio's top court.

“Widespread delay continues to bog down the Ohio capital justice system,” wrote Ms. Montgomery in her annual report on death-penalty cases. “... Systemic delay at both the state and federal level continue to cause frustration among Ohio's citizens and the legal community, and with it, distrust of the entire justice system.”

Thomas Moyer, chief justice of the Ohio Supreme Court, referred to Ms. Montgomery's report as “deficient in a number of respects.”

“This ... report gives the impression that cases are languishing unattended. That is not accurate,” Chief Justice Moyer said. “We are not going to give those records in death cases a cursory review just to make a report look good.”

The squabble is a rare example of a Republican attorney general squaring off with a Republican chief justice of the Supreme Court. The seven-member court has five Republicans and two Democrats.

Ms. Montgomery's report includes a list of 16 death penalty cases that “appear to be stalled in state review.”

Ten are direct appeals that are waiting for the Ohio Supreme Court to schedule oral arguments. A direct appeal occurs when death-row inmates attempt to overturn their conviction or sentence by alleging errors in the trial record.

Those cases include the direct appeal from Douglas Coley, convicted in 1998 of kidnapping 21-year-old Samar El-Okdi, robbing her, and shooting her in the head. The case has been awaiting scheduling of oral argument in front of the state Supreme Court for one and a half years, Ms. Montgomery said.

Dean Mandross, chief of the criminal division for the Lucas County prosecutor's office, said he doesn't know why the high court hasn't scheduled oral arguments.

He said a factor may be the 1994 constitutional amendment that eliminated state appeals courts from appeals, moving cases directly to the high court. Prior to the change taking effect, state district appeals courts reviewed trial records, consolidated legal issues, and provided analysis.

Chief Justice Moyer said the constitutional amendment has increased the number of capital cases filed with the Supreme Court from an average of 12 a year in the early 1990s to 29 in 1998.

“We give them more careful consideration, because there is only one [state] appeal. We have not increased staff, because in 2000 there were only six appeals filed and this year so far, only four filed. Juries are recommending life without parole more frequently,” he said.

Ms. Montgomery said a report she released in 1996 showed that several death-penalty cases had been “slowed by systemic delay,” particularly in the processing of post-conviction appeals.

As a result, the Supreme Court approved a rule on July 1, 1997, designed to prevent delays as death-row inmates pursue post-conviction actions. Those are appeals in which inmates generally accuse the lawyer that represented them at trial as being incompetent.

The rule says post-conviction actions should be ruled on within 180 days after they are filed. It requires trial courts to report the status of their death-penalty convictions to the Supreme Court.

The Supreme Court needs to do a better job of enforcing the rule, Ms. Montgomery said.

The post-conviction petition of Timothy Hoffner, one of three people convicted in connection with the 1993 murder of Christopher Hammer, who was buried alive in Sylvania Township, has been pending for about three years in Lucas County Common Pleas Court.

“It's frustrating, when the victims want closure,” said Lucas County Prosecutor Julia Bates.

Judge William Skow said he did not rule on Hoffner's post-conviction petition because a state appeals court did not reject Hoffner's attempt to get his conviction overturned until March 23. Judge Skow said he intends to deny Hoffner's post-conviction petition within two weeks.

Chief Justice Moyer said the rule requires the trial judge and administrative judge to report “difficulties and delays” in post-conviction cases.

“We are not aware of delays unless they are reported,” he said.

Joe Case, a spokesman for Ms. Montgomery, said the attorney general's “suspicion” is that the Supreme Court doesn't have enough staff members to enforce the rule.