“Does it matter that in Ohio if the jury had not recommended death, the trial court would have no authority to impose death?”
Justice French, to defense counsel
On January 23, 2018, the Supreme Court of Ohio heard oral argument in State of Ohio v. Maurice Mason, 2017-0200. At issue in the case is whether, under Ohio’s statutory scheme governing the death penalty, the jury’s role as fact-finder is improperly abrogated in violation of the Sixth Amendment. Second District Court of Appeals Judge Michael T. Hall sat for then-Justice O’Neill. Sixth District Court of Appeals Judge James Jensen sat for Justice O’Donnell, who also recused himself from this appeal.
In 1993, Maurice Mason was indicted for the aggravated murder of Robin Davis, with a death penalty specification alleging the murder occurred during the commission of a rape. On June 18, 1994, a jury found Mason guilty. The trial proceeded to the penalty phase, and mitigation evidence was presented to the jury. After weighing the aggravating circumstances and mitigating factors, the jury recommended that Mason be sentenced to death. The trial court accepted the jury’s recommendation and sentenced Mason to death.
In 2008 Mason was granted federal habeas corpus relief for ineffective assistance of counsel during the penalty phase of his trial. While Mason’s resentencing was pending, the United States Supreme Court decided Hurst v. Florida, which invalidated Florida’s death penalty statute on the ground that its statutory scheme requiring a judge, rather than the jury, to make the final determination to impose the death penalty was a violation of the Sixth Amendment. Mason subsequently filed a motion to dismiss his death penalty specification, arguing that Ohio’s death penalty statute in effect in 1993 was unconstitutional in light of the Hurst decision. The trial court agreed, and granted Mason’s motion.
On appeal, the Third District, in a unanimous opinion, reversed the trial court’s ruling which found Ohio’s 1993 death penalty statute unconstitutional under the Sixth Amendment. The Third District found that the trial court erred in failing to follow and apply State v. Belton, and in finding that the Sixth Amendment requires jury fact-finding in capital sentencing. The court found that Ohio’s death penalty statute differs from Florida’s, because in Ohio a jury death penalty recommendation must be unanimous, whereas Florida’s statute imposes a hybrid proceeding where the jury gives only an advisory verdict where unanimity is not required, and the judge makes the ultimate sentencing determination.
Read the oral argument preview of the case here.
Key Statutes and Precedent
U.S. Const. Amend VI (In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed . . .)
R.C. 2903.01(B) (No person shall purposely cause the death of another . . . after committing or attempting to commit… rape…)
R.C. 2929.03(D)(3) (If, after receiving the trial jury’s recommendation that the sentence of death be imposed, the court finds, by proof beyond a reasonable doubt…that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, it shall impose the sentence of death on the offender. Absent such a finding by the court…the court…shall impose a sentence of life imprisonment either with parole after a period of twenty or thirty years, or without parole eligibility.)
R.C. 2929.04(A)(7) (Ohio’s death penalty statutes states as follows:
(A) Imposition of the death penalty for aggravated murder is precluded unless one or more of the following is specified in the indictment . . .
(7) The offense was committed while the offender was committing or attempting to commit… rape…)
State v. Buell, 22 Ohio St.3d 124 (1986) (R.C. 2929.03(D)(3) delegates the death sentencing responsibility to the trial court upon its separate and independent finding that the aggravating circumstances outweigh the mitigating factors.)
Spaziano v. Florida, 468 U.S. 447 (1984) (Finding it constitutional under the Eighth and Sixth Amendments to place the responsibility of imposing a capital sentence on the trial judge as opposed to the jury.)
Hildwin v. Florida, 490 U.S. 638 (1989) (The Sixth Amendment does not require that the specific findings authorizing the imposition of the death penalty to be made by a jury and allowed them to be made by judicial factfinding.)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (Any fact exposing a defendant to a greater punishment than the statutory maximum must be considered by the jury and proved beyond a reasonable doubt.)
Ring v. Arizona, 536 U.S. 584 (2002) (A statutory scheme is unconstitutional when judges must determine whether any aggravating factors are present which expose the defendant to greater punishment than otherwise permitted by a jury’s verdict.)
Hurst v. Florida, 136 S.Ct. 616 (2016)(The Sixth Amendment requires a jury, not a judge, to find each fact necessary for the imposition of a death sentence. A jury’s recommendation is not enough. Any statutory scheme requiring a judge alone to find the existence of aggravating circumstances is unconstitutional. The prior decisions in Hildwin and Spaziano are expressly overruled in relevant part.)
State v. Belton, 2016-Ohio-1581 (If a jury has already found a defendant to be death-penalty eligible then any subsequent weighing processes do not implicate Sixth Amendment concerns. When a capital defendant elects to waive the right to have a jury determine guilt, the Sixth Amendment does not guarantee the defendant a jury at the sentencing phase of trial.)
At Oral Argument
Kort Gadderdam, Carpenter Lipps & Leland LLP, Columbus, for Appellant Maurice Mason.
Jeffrey M. Gamso, Assistant Public Defender, Cuyahoga County, for Amicus Ohio Association of Criminal Defense Lawyers in support of Mason.
Kevin P. Collins, Assistant Prosecutor, Marion, for Appellee State of Ohio
Allocation of Argument Time
Martin’s lawyer shared his time with Amicus Counsel for the Ohio Association of Criminal Defense Lawyers in support of Mason. Their arguments are consolidated here.
In Hurst v. Florida, the U.S. Supreme Court held that the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s recommendation is not enough. Ohio death penalty statute suffers from the same infirmities as Florida’s. Under the Ohio statute, after a jury recommends a sentence of death, a judge must find by proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors. A defendant is not eligible for the death penalty in Ohio until the trial judge finds beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors and then writes a specific opinion about the mitigating factors that were found and the aggravating circumstance. As things stand now in Ohio, there is no way to know how the jury weighs the aggravators and the mitigators. So the trial judge is really getting no guidance.
The jury’s function under the invalidated Florida death penalty statute is advisory only. Ohio’s is no different. In the guilt phase, a jury in Ohio finds an aggravating circumstance. Then it goes to the penalty phase. The jury issues an advisory opinion to the judge. Even if the jury makes a finding of death, without the independent weighing by the trial judge with no input from the jury, there can be no death penalty. While the trial judge should still have a role, it must not be to make the final decision. The problem is, the jury is making a recommendation with no guidance to the trial court, and the trial court has to make the ultimate and final decision. That’s what the U.S. Supreme Court said can’t happen anymore under Hurst.
Contrary to the state’s argument, Belton is not dispositive here. The issue in Belton was whether the defendant could waive a jury in the trial phase and still have a jury in the penalty phase. The issue of Hurst was not briefed in that case—Hurst was decided just a few days before oral argument in Belton. The defense also believes Belton was incorrect when it said weighing in the penalty phase is not fact finding subject to the Sixth Amendment.
Apprendi and Ring made it clear that the aggravating factor is critical in a case, because it is akin to an element of the offense. Florida’s statute on this differs from Ohio’s in two significant ways.
The Florida statute involves the finding of an aggravating factor by a jury that is unspecified, unarticulated, and found by a majority of the jurors. There were two aggravating circumstance submitted to the jury in that case, but no way of knowing how many jurors believed each exited—there may have been no majority, let alone unanimity, regarding any specific aggravating factor. Beyond that, there is no specific finding as to which factor that is found is communicated to the judge. Thus, in Florida, the jury verdict is really an exercise in irrelevance –it’s not communicated, and there may not even be a majority that finds a particular aggravating factor.
In Ohio, if the jury recommends death, it is a recommendation which the judge may consider, and determine for other reasons is inappropriate. But if the jury recommends life, that is not a recommendation. It is binding on the judge.
Martin’s argument eliminates the distinction between death penalty eligibility and the imposition of the death penalty. What Martin is really advocating is jury sentencing, which the U.S. Supreme Court has never said is constitutionally required. Nor does Hurst stand for jury sentencing.
As Justice Scalia noted in his concurrence in Ring, those states that leave the life or death decision to a judge may continue to do so by requiring prior jury findings of aggravating factors in the sentencing phase, or, more simply, by placing that determination in the guilt phase, where it logically belongs, which is what Ohio does.
Hurst stands for this and this alone—the presence of an aggravating factor that is necessary to impose the death penalty is a fact that must be found by the jury, expressly, not implicitly, and independent of a judge. Ohio’s capital sentencing scheme does exactly that. The Court of Appeals decision should be affirmed.
What Was On Their Minds
Very little, apparently. This is one of the coldest benches I can recall. Justice French tried the most gamely to engage, followed by Judge Jensen.
All the questions were about the specifics of the statutory scheme, and how Ohio differs from Florida.
What would the defense procedure look like, asked Justice French? It goes to the jury to decide, and that’s it—there’s no review by the trial court? Hasn’t this court already decided this issue in Belton? If the Court were to agree and strike the statute down for capital trials, would that implicate other felony convictions and sentencings that trial courts do all the time in felony cases?
In Florida, but not in Ohio, a trial court could ignore the jury’s recommendation or finding, asked Judge Jensen? Doesn’t Ohio’s independent weighing by a judge in the sentencing phase give the defendant greater protection? He commented that as was pointed out in the amicus brief by the Cuyahoga County Prosecutor, there were at least 10 instances where the court found the death penalty should not be imposed. Later he asked the only question of defense counsel, which was that once the weighing of aggravators versus mitigators was done by the jury, was the Sixth Amendment analysis complete?
Justice Fischer questioned defense counsel’s extensive reliance on an Eighth, rather than a Sixth Amendment precedent.
How it Looks from the Bleachers
To Professor Emerita Bettman
Like a win for the state. Chief Justice O’Connor, Justices DeWine, Fischer, O’Neill, and French voted to hear this case. I’m not sure why. O’Neill is gone, and he of course had a per se opposition to the death penalty, but as for the rest, I have to wonder why they bothered. The bench was totally cold. The assistant prosecutor was asked only one question during his entire argument, and that by subbing Judge Jensen, who actually did try and get involved. The other sub, Judge Hall, said nary a word. Nor did the Chief, Justice DeWine, or Kennedy, who never does.
I often write that I don’t find divided arguments to be effective, and this one wasn’t. I had a hard time following Mr. Gamso’s points.
Overall, I think the defense does have a point, but if it wishes to pursue it, Martin had better take his chances in a federal forum, if available. Maybe the U.S. Supreme Court will bite—some of those justices have been getting increasingly critical of the death penalty.
To Student Contributor Paul Taske
This case looks like a clear victory for the State of Ohio.
During oral argument, the Supreme Court of Ohio gave meaning to the phrase “cold bench.” The lack of engagement from the justices appeared to throw counsel somewhat off their game. It appeared that both sides anticipated a plethora of questions and received relatively few. When questions were asked of Mason’s counsel they were largely big-picture questions or prompts to signal he should move on to the next phase of his argument. Counsel for the State received fewer questions and presented his argument almost without interruption.
While a cold bench ordinarily makes a case more difficult to predict—because you cannot use the justices’ questions to guide your prediction—I think the opposite is true in this case. The silence of the bench was deafening to my ears. The lack of questions likely indicates a win for the State here.
The Court will likely take the position that Ohio’s statutory scheme is sufficiently different from Florida’s. The justices seemed unwilling to concede any similarity between the two statutory schemes. If Mason does lose, I expect his counsel will seek review from the United States Supreme Court.