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'I" [jj . CASE NO. 11 CR 000321



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Motion No.4



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Now comes the Defendant, Joseph L. Thomas, by and through counsel, and respectfully moves this Court for an order dismissing that portion of the aggravated murder indictment in the above-captioned matter which elevates the potential penalty from life imprisonment to death

because Ohio's statutory scheme in no longer in conformity with Furman v. Georgia, 408 U.S. 238 (1972).

CHARLES F. GRIESHAMMER, #0022693 Asst. Lake County Public Defender 125 E. Erie Street Painesville, OH 44077 (440) 350-3200 ATTORNEYS


DAV 4403 St. Clair Ave Cleveland, OH 44 (216) 361-1112


A. Arbitrary and unequal punishment The Fourteenth Amendment's


guarantee of equal protection requires similar treatment of

similarly situated persons. This right extends to the protection against cruel and unusual punishment. Furman, 408 U.S. at 249 (Douglas, J., concurring). A death penalty imposed in violation of the

Equal Protection guarantee is a cruel and unusual punishment. See id. Any arbitrary use of the death penalty also offends the Eighth Amendment. Id.

Ohio's capital punishment scheme allows the death penalty to be imposed in an arbitrary and discriminatory manner in violation of Funnan and its progeny. Prosecutors' virtually uncontrolled indictment discretion allows arbitrary and discriminatory imposition of the death penalty. The Supreme Court of Ohio found that Ohio's original statutory scheme sufficiently comported with Furman. State v. Leonard Jenkins (1984), 15 Ohio St. 3d 164,473 N.E.2d 264. If Ohio's original death penalty statutory scheme metthe mandates ofFurman v. Georgia, 408 U.S. 238 (1972), changes to the statute and interpretations ofthe criminal code by this Court have expanded the eligibility of homicide defendants to the point that the death penalty in this state is no longer constitutional. Numerous Changes to StatutOlY Scheme Since Jenkins Since the Jenkins decision, the numerous changes in the death penalty statutory scheme and interpretation of the statute have rendered Jenkins inapplicable to the present scheme. R.C.

2929.04(A), the statutory aggravating factors, has been expanded. Subsections A(9), the killing of a person under the age of thirteen, and A(IO), killing during an act of terrorism, have been added to the eligibility list. A( 4) has been expanded considerably. Originally the aggravating factor limited the factor to the killing of a prisoner in a detention facility. It has been expanded to included to read: The offense was committed while the offender was under detention or while the. offender was at large after having broken detention. As used in division (A)( 4) of this . section, "detention" has the same meaning as in section 2921.0 I ofthe Revised Code, except that detention does not include hospitalization. institutionalization, or

confinement in a mental health facility or mental retardation and developmentally disabled facility unless at the time of the commission of the offense either of the following circumstances apply: (a) The offender was in the facility as a result of being charged with a violation of a section of the Revised Code. (b) The offender was under detention as a result of being convicted of or pleading guilty to a violation ofa section of the Revised Code. In addition, this Court's opinions have further expanded the eligible defenders for the death penalty. The killing of a witness/escape detention specification had been expanded to include almost any allegation under R.C. 2929.04(A)(3). State v. Clarence Fry 201 0-Ohio-1 017. The under.

detention specification pursuant to R.C. 2929 .04(A)( 4) now includes probation, post-release control or any other supervision by a state authority.

under R.C. 2929.04(A)(5) may included

A course of conduct homicide specification

homicides months apart with no commonality other than there were two homicides committed by the same defendant, even months apart. State v. Michael Dean Scott (2004), 101 Ohio St.3d 31; State v. Sapp, 105 Ohio St. 3d 104,2004 Ohio 700. Case law now presumes a trespass is presumed as any invitation into a residence is legally revoked

if a homicide


in a residence,

thus expanding





State v. Steffen (1987), 31 Ohio S1. 3d 111. a more specific killing a person to prevent testimony, has also been

R.C. 2929.04(A)(8),

expanded since the death penalty was re-enacted in 1981. Vagueness Problem with Prior Calculation and Design Perhaps adding to the expansion of eligible offenders is the obliteration of the line between prior calculation and design for Aggravated Murder under R. C. 2903.0 1(A) and Murder under R.C. 2903.02(A). Currently an instantaneous homicide can be classified as prior calculation. State v.

Taylor (1997), 78 Ohio St.3d 15 (must be determined on a case by case basis, no bright-line determination). In State v. Claytor (1991). 61 Ohio St. 3d 234,574 N.E.2d 472, this Court held that Jackson went beyond the "impulse of the moment" and acted with prior calculation and design.

This was a far different standard than had previously been followed by the court. In State v. Fears (1999) 86 Ohio St.3d 329. the test was reduce to a standard of almost "instantaneous events." p.341. eruption of

Based on these standards, it is not surprising that this Court has not found

insufficient evidence for the element of prior calculation and design for literally decades. In State v.Reed (1981).65 Ohio St.2d 117, this Court held that evidence of prior calculation and design was insufficient to support aggravated murder convictions. In Reed. the defendant stood in a convenient store parking lot talking on the telephone. Two police officers thought he looked

suspicious. They followed the defendant's car. They stopped the car. One of the officers had his gun drawn when he approached Jackson and the other occupants in the car. Jackson exited the car and shot at one of the officers three times and twice at the other officer. The only evidence of prior calculation and design was a statement Jackson made to a person in an auto body repair class with him approximately a month before the incident. He said "if a cop gets in my way (during a robbery) I would blow him away." The comment was general in nature and not relevant to the killing. The above evidence did not constitute prior calculation and design. This Court held that the evidence was sufficient only for purposeful killing. would be decided in the same manner under today's standards! The problem is that under a beyond the "impulse of the moment" or an "instantaneous eruption of events" standard, the prosecutor can obtain a probable cause finding by a grand jury for almost any purposeful homicide. The almost unlimited discretion and arbitrary power in the hands of the prosecutor was distinctly prohibited by Furman. Thus, Ohio's capital punishment scheme allows the death penalty to be imposed in an and its progeny. Prosecutors' imposition virtually It is doubtful that Reed

arbitrary and discriminatory manner in violation ofFunnan uncontrolled penalty .. indictment discretion

allows arbitrary and discriminatory

of the death

A core principle to this nation death penalty jurisprudence

is that the courts must channel or

limit the sentencer's discretion. Godfrey v. Georgia (1980), 446 U.S. 420, 428. This is required in

order to "genuinely narrow the class of persons eligible for the death penalty compared to others found guilty of murder." Zant v. Stephens (1983), 462 U.S. 862, 877. Although this Court has not mandated that the states adopt any particular statutory approach, the scheme must nonetheless ultimately narrow the death eligible offenders. Spaziano v. Florida (1984), 468 U.S. 447, 464. To exacerbate the problem with the vague prior calculation and design problem, a finding that defendant specifically requirement intended to have intended to cause the death of another is no longer a Originally, R.C. 2903.01(D) required the precluded a

obtain a sentence of death.

conviction of aggravated murder unless the above element was present. This portion of the statute has been repealed.. Ohio is a weighing state. Its statutory scheme is achieves the narrowing

requirement by requiring the sentencing body to weigh statutory aggravating factors against the mitigation presented by the defense during the sentencing phase of the trial. O.RC. 2929.04(A) To be a valid aggravating circwnstance, this Court has held that two requirements must be met. First,' it must not apply to every defendant convicted of murder. Tuilaepa v. California (1994),512 967,972; Kansas v. Marsh (2006),548 U.S. 163, 173-74. Second, U.S.

it must not be constitutionally

vague. TUilaepa, supra; Maynard v. Cartwright (1988), 486 U.S. 356, 360 Here, because of the vague nature of the element of prior calculation and design, the first branch of the above requirements has been defeated. As Ohio prohibits mercy to be considered as a mitigating factor, there is no corrective devise in place. In footnote 3 of Kansas v. Marsh (2006),548 U.S. 163, Justice Thomas explained that

mercy as a mitigating factor is important "because it 'alone forecloses the possibility of Furman-type error as

it' elirninate[s] the risk that a death sentence will be imposed in spite of facts calling for a
In other words, in the opinion of Justice Thomas, if the state statutory scheme is may act to cure inherent proportionality issues based on the

lesser penalty."

over inclusive, mercy considerations

appropriateness of the death for the conduct of a defendant versus the conduct of another defendant. Ohio does not allow for this corrective process.

Wherefore, the Defendant James Thomas respectfully requests that this Honorable Court preclude a penalty of death as an option in this case.


Attorneys for Defendant

A copy of the foregoing Motion was served upon Charles F. Cichocki, Assistant Prosecutor, Lake County Prosecutor, 105 Main Street, Painesville, OH 44077, by regular U.S.

mail this-l-

day of January, 2012.

IDDA~~L.~~~~~ CHARLESF. G Attorneys for 0