What’s On Their Minds: Can a Defendant in a Capital Case Whose Death Sentence is Overturned on Appeal be Re-Sentenced to Death Under an Amended Statute Not in Effect on the First Go-Around?

Update: On June 14, 2012, the Court handed down a merit decision in this case, affirming the re-imposition of the death penalty.

 On November 16, the Supreme Court of Ohio heard oral argument in the case of State v. White, 2009-1661.  The constitutional issue in the case involves the retroactive application of Ohio’s resentencing statute, R.C. 2929.06.

In 1996, Maxwell White was convicted of aggravated murder, and the trial court imposed the death penalty upon a jury’s recommendation.  At the time White committed the offense, if a death sentence was vacated on appeal, the only re-sentencing option was life with parole eligibility after 20 or 30 years.  In 2005, when the case was in federal court in habeas corpus proceedings, the U.S. Court of Appeals for the Sixth Circuit reversed and remanded the death sentence based on an error in voir dire.  When White was re-sentenced, R.C. 2929.06 had been amended to allow the imposition of death upon re-sentencing.  The trial court found the statute unconstitutional as applied retroactively to White.  The Fifth District Court of Appeals reversed.  Read the oral argument preview of this case here.


An assistant Ohio public defender shared time with White’s appointed counsel.  The public defender argued that the re-sentencing provisions of 2929.06(B) do not apply in this case, so that the constitutionality of the retroactive application of this statute need not be decided.  That provision only applies when the death penalty is vacated because of an error that occurred in the sentencing phase of the trial.  The Sixth Circuit vacated the death sentence because of an error in the voir dire phase of the trial, (the error was in failing to exclude a juror who could not fairly consider the death penalty) so the new re-sentencing provisions do not apply to White.

 White’s appointed counsel argued that when White committed the offense, the law at that time was that if he were to be re-sentenced,  the death penalty could not be imposed on remand, and he had a vested right in that set of penalties, specifically in not again being death-eligible.  Re-imposition of the death penalty, permitted upon re-sentencing after 2005 by legislative amendment, would be an unconstitutional retroactive application of that law as to White.

 The prosecutor argued that White was covered by the statute because when read in context, the Sixth Circuit holding was that the error occurred in the penalty phase of the trial.  Even though the federal appeals court held that the error literally occurred during voir dire, the error was not in seating the juror at all, or having her on the jury during the guilt phase, but keeping her on the jury in the penalty phase of the trial.  As to the retroactive application of the death penalty on re-sentencing, the state argued that the defendant was on fair notice at the time he committed the offense that his actions could mean he could be sentenced to death.  At the time he committed the murder, the defendant had no vested right to any re-sentencing options.

 At What Phase of the Trial Did the Error Occur?

Justice O’Donnell asked whether the Ohio Supreme Court could translate the holding of the Sixth Circuit into an error during the sentencing phase because the juror who should not have been seated participated in the recommendation of the death penalty. He later commented that the error occurred in the voir dire portion of the trial, but the effect of the error, or when it came to light, wasn’t until the penalty phase began.

 Statutory Interpretation

Justice Lanzinger asked both counsel whether an alternative interpretation of the statutory language “error occurring during the sentencing phase” could be an error that affected the sentencing phase.  But if there was any ambiguity in the language, must the Court not read it in the manner most favorable to the defendant?

 What is the Key Date Here?

Chief Justice O’Connor wanted to be sure the defendant wanted the Court to key in on the date the crime occurred, not the date of the remand. (he did)

 Justice O’Donnell wanted to be sure the key date was the date the offense was committed, not the date of the trial. (it was). 

Why Was the Penalty on Remand More Severe than What He Originally Faced?

Justice O’Donnell noted that the defendant was originally sentenced to death, and on remand under the new statute he was still subject to the death penalty, so how is that more harsh?

 Justice Lanzinger asked if a defendant who has a potential future benefit (in this case not being death-eligible  should re-sentencing be required on remand) which is taken away at a later time,  has suffered an increase in punishment?

 What were the Options for Replacing a Juror During the Penalty Phase At the Time of White’s Trial?

Justice Cupp asked whether under Ohio law at the time of the trial, a juror could be replaced after the guilt phase and substituted at the penalty phase? If that wasn’t allowed then, wouldn’t that make a difference in this case?

 Why All the Emphasis on Federal Law? What about the Ohio Constitution?

Justice Pfeifer, who was unusually quiet in this case (see post here about how the prosecution tried to recuse him from this case) asked the prosecutor why he had spent so much of his time discussing U.S. Supreme Court cases on ex post facto laws and none on the retroactivity provisions of Article II Section 28 of the Ohio Constitution.

 How it Looks from the Bleachers

The Court could get out of the constitutional question by deciding that the error in this case did not occur during the sentencing phase, so R.C. 2929.06(B) does not apply.  The Sixth Circuit clearly held that the juror never should have been seated in the first place given her equivocal answers and stated ambivalences about her own fairness, but it is also clear that the prejudice came in the sentencing phase.  If the Court takes this route, it would be a narrow one, and not likely to be of much precedential value.

 If the Court does decide the constitutionality of retroactive application of the statute as applied to White, I suspect a majority will uphold it.  The justices seemed skeptical about the defendant having some vested entitlement to certain penalty options, given the fact that when he committed the murder he knew then he could get the death penalty for it.

 Justice Pfeifer may use this case as another example of the uneven application of the death penalty that has been troubling him.



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