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The Lucasville Uprising: New Discoveries
By Staughton Lynd, Prisonersolidarity.org
Feb. 27, 2006
In August 2004, I reported on eight
years of inquiry into the events of April 11-21, 1993, at the Southern
Ohio Correctional Facility in Lucasville, Ohio, in a book entitled
Lucasville: The Untold Story of a Prison Uprising, published by
Temple University Press.
Among the conclusions of that book were the following:
First, there was no physical evidence to link any particular prisoner
or prisoners with the murder of any of the nine prisoners who were
killed during the eleven days, or with the murder of hostage correctional
officer Robert Vallandingham. There were no fingerprints, no DNA.
Convictions were based almost entirely on the testimony of prisoners
who traded their trial testimony for letters to the parole board,
concurrent rather than consecutive sentences, reduced charges, and
in some cases, no charges at all.
Further, the four prisoner spokespersons who were convicted of murdering
Officer Vallandingham were not guilty. (The four are Siddique Abdullah
Hasan f.k.a. Carlos Sanders, Jason Robb, George Skatzes, and Namir
Abdul Mateen a.k.a. James Were.)
The State put in evidence an audiotape made by the F.B.I. which
indicated that these four and others discussed the possibility of
killing a hostage officer at a meeting on the morning of April 15.
But testimony of the State's star informant and a transcript of
the F.B.I. tape show that the meeting came to no decision. Rather,
the murder of Officer Vallandingham later that morning was a rogue
action carried out by members of a group called the Black Gangster
Disciples under the leadership of a prisoner named Anthony Lavelle.
Finally, the State contributed to the tragic sequence of events.
The warden refused to consider TB testing by means other than injection
under the skin. After the disturbance began, the authorities deliberately
dragged out negotiations in the mistaken belief that stalling would
save lives. On the morning of April 14, a spokesperson for the State
named Tessa Unwin made an unfortunate statement to the media that
the demands and threats of the prisoners in rebellion were merely
the "language of negotiations," which some prisoners,
listening on battery-powered radios, understood to mean that the
State did not take them seriously. Finally, the refusal of prison
negotiators to reconsider their decision to turn off water and electricity
in the occupied cell block was a proximate cause of Officer Vallandingham's
death.
After the Attica disturbance in 1971, New York Governor Hugh Carey
ordered amnesty for all persons accused of misconduct, including
a prisoner who had already been convicted of murdering an officer.
I concluded that Ohio should follow the example of New York and
declare a general amnesty for all Lucasville-related crimes.
In what follows I report on some discoveries since the publication
of my book. These new findings include:
1. Scioto County residents who signed petitions urging the death
penalty for Lucasville defendants were permitted to become jurors
and witnesses;
2. Prosecutors coerced witnesses to say what the State wanted them
to say, called witnesses whose testimony they knew or should have
known to be false, and sought conviction of more than one person
for single acts such as shattering a man's skull with one swing
of a baseball bat;
3. Elected judges on the Ohio Supreme Court have blatantly revealed
their bias, one of them by publicizing a belief that Lucasville
defendants deserve the death sentence when these convictions are
still on appeal.
These findings demonstrate grave miscarriage of justice in the Lucasville
judicial proceedings considered as a whole. The defense bar and
the media must move beyond a focus on individual cases. All phases
of these proceedings are so flawed as to require the conclusion
that the verdicts and sentences of all Lucasville defendants should
be set aside. Lucasville defendants, having served all or most of
the past 13 years in solitary confinement, should be granted a general
amnesty.
Beverly Taylor's Death: A Plea for Open-Mindedness
I want to begin with a story that is not a finding or a conclusion.
It is a plea for open-mindedness.
After publication of Lucasville I took the book wherever I could
find an audience. One autumn day I found myself speaking to a small
group in the branch campus of a state university in Camden, New
Jersey, across the river from Philadelphia.
During the discussion after I finished, a woman spoke up. She said
her husband was imprisoned at Lucasville in 1990, when an African
American prisoner named Eddie Vaughn killed a Caucasian teacher
named Beverly Taylor. The woman said her husband told her the generally
accepted account was not right.
This comment caught my attention, because the murder of Beverly
Taylor set in motion the process that led to rebellion three years
later. The Southern Ohio Correctional Facility is located in an
overwhelmingly white, culturally Appalachian part of Ohio, from
which most of the prison's officers are recruited. The prisoners
confined at SOCF were two-thirds African American. When Beverly
Taylor was killed, outraged whites picketed the prison, demanding
that the State cease to coddle prisoners they perceived as "the
worst of the worst." A new warden was appointed who instituted
what he called Operation Shakedown. He reduced programming, created
a special mailbox for snitches, caused lines to be painted in the
corridors and required prisoners to march to chow, forced black
and white prisoners who hated one another to cell together, and
overall, set the stage for insurrection.
Thus Ms. Taylor's death was a turning point. The generally accepted
account of it goes like this: Mr. Vaughn was an educational aide
to Ms. Taylor. He followed her into a women's rest room and tried
to rape her. She called out, "No, no, no!" Before officers
could break down the door, Mr. Vaughn cut her throat with the top
of a metal can. How, one might wonder, could this received version
of events not be right?
I told the woman in Camden where I would be speaking that evening
and asked if her husband could come and talk to me. He did. He told
me that no prisoners had witnessed the event but that the prisoners'
grapevine reported the following: When the officers learned that
Mr. Vaughn was in the rest room with Ms. Taylor, they jumped to
the conclusion that he was raping her. Ms. Taylor called out to
them that she had the situation under control. She said that she
and Mr. Vaughn were sitting on the floor, talking. The officers
began to break down the wooden door. It was then, according to my
elderly black informant, that Mr. Vaughn, who grew up in northern
Mississippi, panicked and grabbed Ms. Taylor as a hostage, holding
the metal edge to her throat. Ms. Taylor cried "No, no, no!"
but she was speaking not to Mr. Vaughn, but to the guards. She was
begging them not to break down the door. The officers paid no attention
and a terrified Mr. Vaughn cut Ms. Taylor's throat.
Again, I do not offer this story as a discovery. I do not know whether
it is true. I have talked both to Ms. Taylor's husband and to Mr.
Vaughn, who was sentenced to life imprisonment. When I got back
to Ohio, I questioned two very experienced prisoners who had been
at SOCF in 1990, one white, one black. Both confirmed that the prisoners'
version of what happened is what I heard in Philadelphia. My reason
for sharing this experience is to plead for your open-mindedness.
Things may not always be what they seem, or what we have been told
they are. I finally decided to tell you about this incident because
of a story in the Akron Beacon Journal, Jan. 24, 2006. As in the
murder of Beverly Taylor, some basic facts are not in doubt. James
Trimble took Kent State student Sarah Positano hostage and shot
her in the upstairs hallway of her Brimfield Township apartment.
But, according to the paper:
By the early morning hours of Jan. 22, negotiations with Trimble
had produced a deal. He would free Positano in two hours if police
backed off. Minutes later, everything fell apart, Positano fatally
wounded, the negotiations over. Despite hearing Positano scream
over the phone, it would be more than seven hours before Metro SWAT
entered the apartment.
What happened? asks the Beacon Journal.
Mr. Trimble has rightly been held accountable for his role. But
"[s]till unanswered is what part the activities of law enforcement
officers on the scene may have contributed to the tragic turn of
events." A police sniper may have been briefly in the apartment.
There seem to be eight bullet holes and fragments in the apartment
although the State claims that officers fired only two shots, both
from the outside. "A more complete accounting of police actions
is essential," concludes the Beacon Journal.
I invite you to join me in asking the same question about the trials
of Lucasville defendants.
1. Scioto County residents who signed petitions urging the death
penalty for Lucasville defendants were permitted to become jurors
and witnesses.
A criminal trial begins by convening
a grand jury, which decides whether to issue an indictment. Since
the ten murders during the Lucasville disturbance took place in
Scioto County a grand jury was convened there in the fall of 1993.
The office of the Public Defender was concerned about possible jury
bias. As I describe in my book, a petition had circulated in southern
Ohio that called for reinstituting the death penalty and for speeding
up capital trials. Completed petitions were to be returned to Death
Penalty, P.O. Box 1761, Portsmouth, Ohio. The Public Defender established
that four of the persons in the "venire" for this first
grand jury appeared to have signed the petition, and the last names
of four others suggested that they might be relatives of signers.
The Public Defender moved to have the grand jury dismissed for bias.
The Scioto County Court of Common Pleas denied the motion and found
that the Public Defender had violated a court rule against frivolous
pleadings. The executive director of the Office of the Ohio Public
Defender was dismissed soon after.
My wife, Attorney Alice Lynd, has substantially completed the task
that the Public Defender did not finish. She obtained copies of
the petitions from the office of the Governor. There were more than
25,000 signatures on these documents, a majority from Scioto County.
The names of the grand jurors who issued indictments for kidnapping,
assault and murder have thus far not been disclosed to defense counsel.
Accordingly, my wife and I assembled the names of trial jurors from
the five trials that sentenced Lucasville defendants to death, and
from an equal number of non-capital trials in Scioto County, Hamilton
County (where Cincinnati is located) and Franklin County (which
includes the city of Columbus). The names of petition signers were
then compared with the names of these trial jurors. Professor Andrew
Feight at Shawnee State University in Portsmouth doublechecked signatures
and addresses against election records.
Briefly, the results are as follows. In each of two trials in Scioto
County, State v. Scales and State v. Wells, two of twelve jurors
appear to have signed petitions calling for the death penalty in
Lucasville cases. Moreover, seven white correctional officers who
had been held hostage appear to have signed petitions, four identifying
themselves as "hostage" on the petition form. A number
of these officers testified in the capital cases of Robb, Sanders
and Skatzes in other Ohio counties. Additionally, former hostage
Darrold Clark joined organizers of the petition in meeting with
Governor Voinovich, on which occasion Clark advocated giving guns
to guards at SOCF. "Shoot one of those suckers and they'll
back off from a riot," Clark stated, as reported in the Cincinnati
Post and Toledo Blade for June 9, 1993.
The resulting prejudice for Lucasville defendants is suggested by
the trial of Orson Wells. Mr. Wells was convicted of kidnapping
officers Clark, Fraley, and Hensley, and sentenced to 15 to 25 years
on each count, the sentences to run consecutively. "Bill Bair"
and "Tim Conley" signed the petitions prejudicial to Lucasville
defendants, and "Bill Bair" and "Timothy R. Conley"
were Wells jurors. All three witnesses for the State, Officers Clark,
Fraley and Hensley, appear to have signed the petition: Clark and
Hensley wrote "hostage" next to their signatures.
The testimony offered by these officers was sketchy. When first
interviewed in May 1993, Officer Hensley identified five prisoners
who had taken him hostage, but did not name Mr. Wells until November
1993, shortly before trial. State v. Wells, Transcript, pp. 516-17.
Officer Clark stated that he had no recollection of seeing Mr. Wells
at any time during the uprising. State v. Wells, Tr., p. 748.
Mr. Wells' principal defense was that he had helped to save the
life of Officer Fraley by carrying him to the prisoners' makeshift
infirmary, from where he was transported to safety. After Mr. Wells
left the occupied cell block and was confined in K-side, two officers,
one of them named Thomas Spradlin, came to Wells' cell specifically
to thank him for what he had done to help Fraley. At trial, however,
Officer Fraley testified for the prosecution and said that Wells
had thrown him over his shoulder like a sack of potatoes, State
v. Wells, Tr. p. 787; and Officer Spradlin, whom counsel for Mr.
Wells called as a final defense witness, denied that Fraley had
told him anything about Wells' assistance and said only that a "rumor"
about Wells helping Fraley caused him to express some sort of thanks,
State v. Wells, Tr. p. 1168. And a "Thomas Spradlin,"
it turns out, also signed the petition.
The correctional officers who testified against Wells for the prosecution
had a natural authority as they spoke to friends and neighbors on
the jury. Moreover, both prosecutors and the judge unlawfully engaged
in what is known as "vouching," that is, telling the jury
why these witnesses deserved to be believed.
To counter the correctional officers who testified for the prosecution,
counsel for Orson Wells was obliged to rely primarily on prisoner
witnesses. The judge permitted the prosecution on cross-examination
to present two of these witnesses to the jury as the defendant's
homosexual partners, or, as the prosecutor told the jury in closing
argument, his prison "wives." Overall, this was not a
judicial proceeding that should cause a man now 53 years old to
spend the rest of his life inside prison walls.
In summary thus far, the Lucasville trials took place in southern
Ohio communities that were saturated with hostility to the defendants.
Inexplicably, at least two trials were permitted to take place in
Portsmouth itself. At least four jurors in Scioto County trials
appear to have signed the petition circulated from Death Penalty,
Portsmouth, Ohio, as did hostage correctional officers who testified
in a variety of trials in Scioto County and elsewhere.
2. Prosecutors coerced witnesses to say what the State wanted them
to say, called witnesses whose testimony they knew or should have
known to be false, and sought conviction of more than one person
for single acts such as shattering a man's skull with one swing
of a baseball bat.
Prosecutorial misconduct is the
central fact about the Lucasville judicial proceedings. I do not
point a finger at any particular person, but I do wish to spotlight
a community, namely, Cincinnati. As I said in my book:
[T]he special prosecutor came from Hamilton County. . . . Cincinnati
is the death penalty capital of Ohio. As of April 2003, Hamilton
County had 7.3 percent of Ohio's population but accounted for almost
a quarter of the men on Ohio's Death Row . . . . The Supreme Court
of Ohio has rebuked Hamilton County prosecutors for prosecutorial
misconduct in 14 death penalty cases over a 12-year period.
Professor James Liebman of Columbia
University stated in testimony before the Criminal Justice Committee
of the Ohio House of Representatives that Hamilton County has the
seventh highest death-sentencing rate among populous counties in
the United States, twice that of Cuyahoga County and nearly three
times that of Franklin County. And 60 percent of the men on Death
Row from Hamilton County are black. Lynd, Lucasville, pp. 95-96.
Prosecutorial misconduct extends far beyond the five Lucasville
cases that ended in death sentences. Consider the life sentence
received by African American prisoner Derek Cannon for allegedly
murdering prisoner Darrell Depina on the first day of the uprising,
April 11.
The State called as witnesses a State trooper who interviewed Mr.
Cannon, and five prisoners. The defense, in the words of Innocence
Project attorney Colin Starger, "called no fewer than twelve
inmate witnesses who all corroborated Cannon's testimony that he
was simply not involved. . . . All confirmed that Cannon did not
enter the L-6 block where Depina was murdered during the uprising."
The prosecutor evidently felt that something more was needed to
secure a conviction. He called as a rebuttal witness a man named
Dwayne Buckley, released from imprisonment the day before he testified.
Mr. Buckley said that he had been a porter in the Cincinnati jail
where Mr. Cannon was confined awaiting trial. Cannon, Buckley testified,
had confessed to torturing and killing Officer Vallandingham. And
after Mr. Cannon was found guilty, the trial judge spoke to the
jury and told defense counsel that, for the jurors, Mr. Buckley's
testimony had been the most damning and persuasive.
Now first, Mr. Cannon was indicted for murdering Mr. Depina on April
11, not Officer Vallandingham on April 15. And second, Officer Vallandingham
was killed in the occupied cell block and Mr. Cannon could not have
been there on April 15. Official documents show that Cannon left
the occupied cell block (L block) on April 11, was picked up on
the yard and confined in K block early on April 12, and was taken
to another prison on April 16. It was physically impossible for
Buckley's testimony to be true, and it is inconceivable that the
prosecutor did not know this when Buckley testified.
Judicial proceedings concerning prisoner spokesperson George Skatzes
provide additional examples of prosecutorial misconduct. Skatzes
was convicted of murdering three men -- prisoner Earl Elder, Officer
Vallandingham, and prisoner David Sommers -- and received the death
sentence for the murder of Elder and Sommers.
Concerning Mr. Elder, the undisputed facts are that when the disturbance
broke out he took refuge in the L-2 stairwell together with Officer
Ratcliff; that prisoners extracted him from this hiding place and
beat him badly, then dragged him to a shower in L-6; and finally,
that Elder was later transferred to cell L-6-60, where he died.
Beyond these facts, accounts diverge.
According to the State, Skatzes and another prisoner named Rodger
Snodgrass came to L-6-60 and Snodgrass, directed by Skatzes, entered
the cell and stabbed Elder. I do not believe that Skatzes did anything
of the kind. However, even if he did, Snodgrass himself testified
that when he left L-6-60 Elder was not dead. Moreover, it is clear
that the weapon Snodgrass used was a shank resembling an icepick,
and the coroner testified that there were many puncture wounds in
Elder's body of the sort that might be made by an icepick, but these
were superficial and not lethal.
A recent confession by a prisoner I shall call Mr. X indicates that
Elder was finally killed by prisoners who entered L-6-60 and finished
off Elder with an improvised knife made from the broken mirror in
the officers' restroom. Use of the shank described by Mr. X is consistent
with the blade wounds that the coroner determined to be lethal,
and with a fragment of glass that the coroner found in Mr. Elder's
chest.
Based on this confession, the special prosecutor has indicted Mr.
X for Elder's murder. But the prosecutor has apparently not credited
the emphatic testimony of Mr. X, offered in a June 1998 affidavit,
in his August 2000 confession, and in another affidavit of September
2003, that George Skatzes was never present and had nothing to do
with Elder's murder. If Skatzes had been somehow involved with the
actual killing of Elder along with Mr. X, one could understand why
both would be indicted for murder. But since, according to the confession
credited by the prosecution, Elder was killed by prisoners who had
no connection with Skatzes when Skatzes was nowhere around, it follows
that even if the earlier activity of Snodgrass occurred just as
the prosecution asserts, the most Skatzes could be guilty of --
it would seem -- is attempted murder. And because all of Skatzes'
alleged misconduct was tried in a single proceeding, the revelation
that is credited by the prosecution as the basis for indictment
of X would appear to require that Skatzes receive a new trial.
Skatzes' conviction for the murder of prisoner Sommers is equally
suspect, and again in a way that prosecutors must have known. Assistant
Special Prosecutor Hogan asserted in closing argument during the
penalty phase of the Skatzes trial: "[T]hink about David Sommers,
. . . the last of the three killings, the one where [Skatzes] wielded
a bat and literally beat the brains out of this man's head."
State v. Skatzes, Transcript, p. 6108. Yet during the penalty phase
of the later trial of another prisoner, Aaron Jefferson, Assistant
Special Prosecutor Charles Crowe told the jury:
If there was only one blow to the head of David Sommers, the strongest
evidence you have [is that] this was the individual -- I won't call
him a human -- this is the individual that administered the blow.
. . . If there was only one blow, he's the one that gave it. He's
the one that hit him like a steer going through the stockyard, the
executioner with the pickaxe, trying to pick through the brain.
State v. Jefferson, Transcript, pp.
656-57.
Since publishing these facts in
my book, I have learned that a third prisoner is also alleged to
have struck that single fatal blow with the baseball bat which killed
David Sommers. According to an official document, "On 02/06/96,
the Lawrence County Common Pleas Court accepted [Jesse] Bocook's
plea of Voluntary Manslaughter for killing inmate David Sommers
with a baseball bat." Other documents state to the same effect
that "inmate Bocook murdered inmate David Sommers," and
"Bocook was involved with the killing of another inmate by
beating him with a baseball bat." Three different men, Skatzes,
Jefferson, and Bocook, could not have struck a single fatal blow
with a baseball bat. Overzealous prosecutors nevertheless persuaded
decisionmakers that each of the three defendants had struck the
same fatal blow.
So in summary, exactly what am I charging as to prosecutorial misconduct?
Portsmouth, Ohio is not the Deep South. There is no practice there
of lynching the next African American male encountered as a vicarious
scapegoat for the real or imagined insult to white womanhood inflicted
by some other black man. But Portsmouth, Ohio, like other communities
stretching along the north side of the Ohio River from Marietta,
Ohio through Cincinnati and New Albany, Indiana (where my father
grew up) all the way to Cairo, Illinois, is part of the Upper South.
Portsmouth is an overwhelmingly white community with an Appalachian
culture, embittered by the murders of Beverly Taylor and Robert
Vallandingham, and by many other violent encounters between white
officers and black prisoners over the years.
This social atmosphere is not the fault or creation of any particular
person. But its effect is that after an event like the April 1993
rebellion the concern of citizens and prosecutors alike is that
some prisoners should pay with their lives for what occurred. There
is no question that Highway Patrolmen and prosecutors singled out
the visible leaders and spokespersons for the prisoners -- especially
Hasan, Skatzes, Robb and Lavelle -- and built cases against them.
There is no question, indeed Director Wilkinson himself has said
so, that the key step in the prosecutions was to induce Lavelle
to turn State's evidence, and in my book I describe in detail the
machinations that brought this about.
There is also no question that prisoner after prisoner was told,
Either you testify under oath what we tell you or we will try you
for murder, and that many of the informants thus procured were assembled
at Oakwood Correctional Institution, the so-called "snitch
academy," to coordinate their stories. You may find this hard
to believe so let me give some examples.
On the first afternoon of the uprising, several prisoners generally
considered to be snitches were locked up in L-6 for their own protection.
Timothy Grinnell was convicted of using the console to open the
doors of the cells in which five of these men were confined so that
they could be beaten to death. Two of the witnesses against Mr.
Grinnell were Eric Girdy and Kenneth Law. Girdy has stated under
oath:
On or about August 15, 1993, the State Highway Patrol came to Lucasville
prison to interview me about inmate Timothy Grinnell and his involvement
in the homicides that occurred in L-6 cell block during the riot.
During the initial interview with the State Highway Patrol about
Timothy Grinnell, I informed the Highway Patrol that Timothy Grinnell
did not participate in the riot. . . .
On or about August 22, 1993, the State Highway Patreol came to Lucasville
a second time . . . . Sgt. Howard Hudson and Special Prosecutor
Mark E. Piepmeier stated to me that . . . if I did not cooperate
with them fully they would indict me on six counts of aggravated
murder and put me on Death Row.
Similarly Kenneth Law has stated
under oath that prosecutor
Robert Piper told him that if he
did not testify against Grinnell he would be tried for murder with
death penalty specifications. "I feared going to death row
for a crime I didn't do so I complied with prosecutor Piper and
lied," Mr. Law states. Indeed, in a second affidavit, Kenneth
Law states that he was also forced to testify against Sanders and
Were (a.k.a. Hasan and Namir) in their trials for the murder of
Officer Vallandingham.
[T]he prosecutor had a deal for me that would not really be any
time if I testified aainst Hasan and Were. I feared of going to
Death Row for something I did not do, so I agreed. I was interviewed
several times before both trials and told what to say.
I have made these three affidavits
available to the media.
What should we call this? Lynching?
No. But might we say, sanitized lynching, late 20th century lynching,
lynching lite, lynching not only of blacks but of whites so foolhardy
as to make common cause with them? Listen to Keith Lamar, one of
the five men condemned to death, describe the scene at his sentencing,
by an all-white jury, in Lawrence County immediately east of Scioto
County.
During the course of my trial, the courtroom remained virtually
empty. However, when it came time for the judge to pronounce his
sentence, it was standing room only; all of a sudden, I was surrounded
by a sea of white people. Where did they come from? How did they
know? I felt like I had been escorted back to the 1800s to witness
a lynching, which is exactly what it was.
Keith Lamar, Condemned, p. 43.
3. Elected judges on the Ohio Supreme
Court have blatantly revealed their bias, one of them by publicizing
a belief that Lucasville defendants deserve the death sentence when
these convictions are still on appeal.
I feel sure that many listeners
or readers are thinking, "Well yes, we know about prosecutors.
We have watched their misdeeds on shows like 'In Justice' or the
PBS documentary 'The Case for Innocence.' But, thank goodness, we
have impartial judges in this country to correct the prejudiced
behavior of some juries and prosecutors."
Would it were so. In January 2005, Ohio Supreme Court justice Alice
Resnick was arrested for drunk driving. The Associated Press reports
that according to the transcript of the video taken from a patrol
dashboard camera, Resnick told state troopers, "Don't you know
I decide all these cases in your favor and look what you're doing
to me."
I wish to describe the actions of another member of our state's
highest court, Justice Paul Pfeifer, that violate the Codes of Judicial
Conduct of the American Bar Association and of the Ohio bar, and
dramatically prejudice Lucasville defendants. Again, despite appearances,
my concern is not to attack an individual. The real problem is that
the state court judges who decide whether capital defendants will
live or die are elected, and make decisions, and in this case write
newspaper columns, that will help them to be elected again.
It is Justice Pfeifer's practice to write newspaper columns about
cases recently decided by the Ohio Supreme Court and to circulate
the columns for publication all over Ohio. This practice is especially
problematic in capital cases, because after the Ohio Supreme Court's
decision on direct appeal of a conviction, the prisoner has two
further appeals.
First, in what is called post-conviction review, the prisoner may
bring to the attention of the same state courts that just decided
his case on the basis of the trial record, facts outside the record
such as the transcripts of later trials, the testimony of newly-discovered
witnesses, or the results of a DNA test with more sophisticated
technology than was available at time of trial. Such DNA evidence
has already resulted in commutation of the death sentence for one
Ohio prisoner, Jerome Campbell. Prosecutors told the jury that the
spot of blood on Mr. Campbell's sneaker when arrested was the blood
of his victim. Subsequent DNA testing with more up-to-date technology
revealed that the blood, as Mr. Campbell always maintained, was
his own.
The final post-trial appeal available to a death-sentenced prisoner
is to federal court by means of a habeas corpus petition. Note that
while a habeas appeal is to new judges, in federal court, the previous
post-conviction appeal is to the same state court judges -- first
in the trial court, then in the Ohio Supreme Court -- that have
already considered and ruled on the outcome of the defendant's trial.
Thus, a member of the Ohio Supreme Court who makes public comment
on the result of a capital defendant's direct appeal may in future
be asked to consider that defendant's appeal from an adverse post-conviction
decision.
This is exactly the position in which Justice Pfeifer has placed
himself.
On July 31, 2002, an item described as "Justice Paul E. Pfeifer's
weekly column" was published summarizing the opinion of the
Ohio Supreme Court in the case of Keith Lamar. Lamar's case was
at the time and still is on further appeal.
On May 18, 2005, another column appeared summarizing the opinion
of the high court, written by Pfeifer himself, in the case of George
Skatzes. As an historian who has devoted uncounted hours to the
analysis of the Skatzes trial record I was appalled by the so-called
summary of facts that appeared, first in the court's opinion, and
then in Pfeifer's newspaper column. There is not a single citation
to the record in either the opinion or the column. Whoever compiled
these alleged facts simply combed the transcript for every fragment
of testimony damaging to Skatzes, without pausing to analyze the
credibility of witnesses or other, conflicting evidence. For example,
the purported facts include the testimony of prisoner Miles Hogan
that on the evening of April 14 he heard Skatzes tell Sanders that
Skatzes was ready to kill a guard if asked to do so. But the State's
own transcripts of telephone negotiations demonstrate that throughout
the entire evening Skatzes was on the phone with prison representative
Burchett attempting to define first steps in a settlement process
that would avoid further bloodshed.
And this is not the worst thing about Pfeifer's column. The column
appeared in a newspaper called The Daily Reporter, published in
Columbus, that describes itself as "the official newspaper
of the Columbus Bar Association, the United States Circuit Court,
United States District Court, Supreme Court of Ohio and all Courts
of Record of Franklin County, Ohio": which is to say, the newspaper
one must assume to be read by the judges of three courts -- the
Ohio Supreme Court, the federal district court, and the Sixth Circuit
Court of Appeals -- to which Skatzes' case will in future be appealed.
And this column, signed by Paul E. Pfeifer, is headlined "Ohio
inmate deserves death for role in 1993 Lucasville riot."
It would be impossible to contrive a set of facts more flagrantly
in violation of state and federal codes of judicial conduct. Canon
3 of the American Bar Association Code of Judicial Conduct deals
with publicity while an appeal is pending. Paragraph A(6) states
unambiguously:
A judge should abstain from public comment about a pending or impending
proceeding in any court . . . .
Similarly, the Ohio Code of Judicial
Conduct as amended in 1997 states in Canon 3, Paragraph B(9):
While a proceeding is pending or impending in any court, a judge
shall not make any public comment that might reasonably be expected
to affect its outcome or impair its fairness . . . .
A Comment as to the meaning of this
prohibition explains further:
"The requirement that judges abstain from public comment regarding
a pending or impending proceeding continues during any appellate
process and until final disposition."
I called all these things to Justice Pfeifer's attention in a 16-page,
single-spaced letter dated May 24, 2005. At the same time I sent
him a copy of my book. He has not responded.
Conclusion
Thus as citizens of Ohio we confront a problem parallel to that
which we confront as citizens of the United States. The judges of
the Ohio Supreme Court are the highest legal authority in Ohio.
But, as the Romans said, Quis custodiet custodies? Who guards the
guardians when the guardians show themselves to be untrustworthy?
I believe that in a democratic society ultimate authority lodges
in the people. When representatives, including elected judges, lose
their way, you and I must step forward to set things right.
What can we do? The first step is to support State Representative
Shirley Smith who, year after year, introduces legislation calling
for a moratorium on executions. A moratorium means a pause. While
we are killing John Byrd, J.D. Scott, Willie Williams, Glenn Benner,
and John Spirko, one after the other, we cannot pretend to be thinking
calmly and clearly about the administration of the death penalty
in the State of Ohio. Let's stop the killing, create a process to
assess our use of the death penalty, and try to talk to each other
about these premeditated murders. Let's begin with a moratorium.
---
Backup materials:
PetitionsAL.pdf
is a memo by Attorney Alice Lynd describing her research on the
petitions, together with illustrative petitions and a trial jury
venire, in pdf because the documents had to be scanned (yet to be
updated);
StargerCannonMemo.doc
is a memo in Word by Attorney Colin Starger of the New York Innocence
Project on the trial and appeals of Derek Cannon;
PfeiferLetter.pdf
is my 16-page single-spaced letter to Justice Pfeifer, detailing
both his violation of the Code of Judicial Conduct and his misrepresentation
of the facts in the Skatzes trial;
JudicialConduct.pdf
is the newspaper article signed by Justice Pfeifer and entitled,
"Ohio inmate deserves death for role in 1993 Lucasville riot,"
and Canon 3 of the Ohio Code of Judicial Conduct.
---
Staughton Lynd
1694 Timbers Court
Niles, OH 44446-3941
Salynd@aol.com
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