On April 22, 2014, the Supreme Court of Ohio handed down a merit decision in State v. Davis, Slip Opinion No. 2014-Ohio-1615, affirming the conviction and death sentence of a man convicted of shooting and killing his ex-girlfriend in 1983. What’s interesting in the case is that the opinion was written by Justice Paul Pfeifer, who in the past has made it clear that he thinks the death penalty should be abolished in Ohio and replaced with a system of life without the possibility of parole.  The part of the opinion upholding the conviction in the Davis case was unanimous.  But Justice Bill O’Neill dissented from the decision to uphold the death sentence in Davis for the same reasons he dissented in the order of execution in State v. Wogenstahl, 2013-Ohio-164—he believes capital punishment is cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution and Article I, Section 9 of the Ohio Constitution.

The timing here is interesting because the Joint Task Force to Review the Administration of Ohio’s Death Penalty, established by Chief Justice Maureen O’Connor in 2011 in her first state of the Judiciary Address as Chief Justice, is wrapping up its work after more than two years. The Task Force was chaired by retired Second District Court of Appeals Judge Jim Brogan. Members of the Task Force have been asked to submit any remaining revisions by April 29. The report will be finalized for final publication and released in mid May. Here is the draft of the report.

At the time Chief Justice O’Connor commissioned the Task Force, which is a joint venture between the Supreme Court of Ohio and the Ohio State Bar Association, its charge was to review the administration of Ohio’s death penalty.  O’Connor made it clear, however, that the task force was not to consider whether Ohio should or should not have the death penalty. But apparently some of the members of the Task Force associated with the prosecution are filing a minority report, criticizing the work of the Task Force as having a “pro-defense agenda,” and as straying from its mission by embracing a number of anti-death penalty recommendations.

“In several of its recommendations, however, the Task Force veered off its narrow mandate and is making recommendations that are anti-death penalty. The work of the Task Force was strongly influenced by a pro-defense majority bent on an agenda of abolition, not fairness,” wrote the members of the minority.

The minority report draft was written by prosecutors and a member of the Attorney General’s staff.

Here are just a few examples of the fifty plus recommendations in the majority report:

• Creation of a death penalty charging committee under the Ohio Attorney General that would have to approve death penalty charges before cases proceed
• The abolition of the death penalty for certain felony murders
• The recording of custodial interrogations
• Elimination of the death penalty for those suffering from serious mental illness
• Provide increased funding for the Ohio Office of Public Defender
• Enact legislation that bans the death penalty where the state relies on jailhouse informant testimony that is not independently corroborated at the guilt/innocence phase of the death penalty trial
• Enact legislation that maintains that a death sentence cannot be considered or imposed unless the state has either: 1) biological evidence or DNA evidence that links the defendant to the act of murder; 2) a videotaped, voluntary interrogation and confession of the defendant to the murder; or 3) a video recording that conclusively links the defendant to the murder
• Pass laws to increase jury pools to all registered voters and licensed drivers who are U.S. citizens.

The final report will go to the Chief Justice, and then ultimately to the General Assembly.