After sifting through hundreds of criminal cases in 44 boxes of records, Anthony Belton's defense attorneys say they believe they have enough evidence to warrant questioning the Lucas County Prosecutor's Office about how it determines which defendants face the death penalty.
Attorney Pete Rost said during a hearing yesterday in Common Pleas Court that a review of public records showed that only 26 of the 66 cases that could have been prosecuted as death penalty cases in the past 13 years in fact led to indictments as capital cases. He said that left 40 cases in which felony murder specifications existed but the prosecutor's office did not pursue the death penalty.
The information was gathered in support of a motion filed by the defense asking to dismiss death-penalty specifications attached to Mr. Belton's charges. He is charged in the 2008 shooting death of a BP convenience store clerk during an apparent robbery.
"There are not only one or two cases but going back 13 years, there are at least 40 cases … that resulted in indictments that could be death cases but weren't," Mr. Rost argued. "… We believe that the defense passes at least the first part of the burden and therefore should be able to question whoever the prosecutor's office deems best about how these cases are chosen."
Mr. Belton, 24, of 934 Cuthbert Rd. is charged with one count of aggravated murder and two counts of aggravated robbery, all with gun specifications. If convicted, he faces the death penalty.
He is accused of shooting Matthew Dugan, 34, once in the back of the head during an Aug. 13, 2008, robbery at the former BP gas station at Dorr Street and Se-cor Road. According to police, the suspect entered the convenience store about 7 a.m., approached the counter, pulled out a gun, and demanded money.
The gunman shot Mr. Dugan after the clerk turned around in response to an order to retrieve telephone cards from behind the counter, authorities said.
A trial is scheduled for Aug. 2.
Assistant prosecutors countered that the defense is not entitled to a hearing because case law dictates that the defense has a "heavy burden" of showing that the cases were all "similarly situated" in terms of facts.
And statistical evidence does not satisfy the burden, said Dean Mandros, chief of the prosecutor's criminal division.
He added that to warrant a hearing on the issue, the defense would have to prove two things, including that Mr. Belton was treated differently from other similarly situated defendants and that the prosecutor's office made its decision for "invidious and improper reasons."
"Even if they establish factual similarities, they then have to establish that we chose these cases as death penalty cases for an unconstitutional reason," Mr. Mandros said, adding that the defense has to date put forth only numbers. "That's all they've been able to do because there's nothing else there."
He said that the prosecutor's office makes its decisions based on the evidence in the case as well as whether the defendant is the "worst type of offender" and if the scenario is the "worst type of the offense."
Judge Ruth Ann Franks asked that each side supply supplemental information before she decides whether a hearing should take place in which Prosecutor Julia Bates would take the witness stand to answer questions about the decision-making process in death penalty cases.
In Ohio, if a defendant is found guilty of aggravated murder with death-penalty specifications, a second phase of the trial is held.
During the sentencing phase, the defense is able to present mitigating factors.
If the circumstances of the crime - specifically, the circumstances that make it a death-penalty case - outweigh the mitigating factors, a defendant may be sentenced to death.
A similar motion submitted by Edgar Howard's attorneys is pending before Judge Gary Cook. Howard, 48, is charged in a capital murder case resulting from the burglary and death of an elderly couple on Mulberry Street in May, 2009.
Charged with two counts of aggravated murder and one count of aggravated robbery, Howard is set to go to trial Jan. 24.
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