IN THE SUPREME COURT OF OHIO

CASE NO. 94-2622 STATE OF OHIO, ) ) Plaintiff-Appellee, ) ) v. ) ) GARY OTTE, ) DEATH PENALTY CASE ) Defendant-Appellant. ) _____________________________________________________________________________

APPELLANT GARY OTTE’S RESPONSE OPPOSING THE STATE’S MOTION TO SET EXECUTION DATE

_____________________________________________________________________________

TIMOTHY J. McGINTY JOSEPH E. WILHELM (0055407) Cuyahoga County Prosecutor Assistant Federal Public Defender joseph_wilhelm@fd.org CHRISTOPHER D. SCHROEDER (0089855) Assistant Prosecuting Attorney VICKI R. A. WERNEKE (0088560) cschroeder@prosecutor.cuyahogacounty.us Assistant Federal Public Defender vicki_werneke@fd.org The Justice Center, Courts Tower 1200 Ontario Street, 8th Floor JILLIAN S. DAVIS (00672720) Cleveland, OH 44113 Research and Writing Attorney (216) 443-7733 jillian_davis@fd.org Counsel for Appellee Office of the Federal Public Defender Northern District of Ohio Capital Habeas Unit 1660 West Second Street, #750 Cleveland, OH 44113 (216) 522-4856 (216) 522-1951 (fax) Counsel for Appellant

Supreme Court of Ohio Clerk of Court - Filed June 26, 2015 - Case No. 1994-2622

mailto:joseph_wilhelm@fd.orgmailto:cschroeder@prosecutor.cuyahogacounty.usmailto:vicki_werneke@fd.orgmailto:jillian_davis@fd.org

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IN THE SUPREME COURT OF OHIO

Case No. 94-2622 STATE OF OHIO, ) ) Plaintiff-Appellee, ) ) v. ) ) GARY OTTE, ) DEATH PENALTY CASE ) Defendant-Appellant. ) _____________________________________________________________________________

APPELLANT GARY OTTE’S RESPONSE OPPOSING THE STATE’S MOTION TO SET EXECUTION DATE

_____________________________________________________________________________

On June 19, the State moved to set an execution date for Appellant Gary Otte. The

State’s request should be denied. First, the imposition of the death penalty would be arbitrary in

this case in view of the inconsistency with which Ohio executes persons who are similarly

situated with Mr. Otte. Second, Mr. Otte’s execution would further no compelling government

interest at this point. Third, Mr. Otte is joined in a civil suit in federal court in which he asserts

that Ohio’s method of execution violates the Constitution. This Court should not set an execution

date for Mr. Otte until his civil suit is resolved because troubling problems persist with Ohio’s

method of execution. Indeed, this Court should conclude that troubling problems persist

generally with the application of the death penalty in this state, rendering it unreliable and

unconstitutionally arbitrary. See State v. Keenan, Slip. Opinion No. 2015-Ohio-2482, ¶ 15

(Pfeiffer, J., concurring) (“If [Keenan] had been executed, there would have been no way for the

state to cleanse itself from the awful reality of having executed a person who had not received

his full measure of legal protection. To ensure that that never happens, the General Assembly

should abolish the death penalty.”).

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Ohio’s capital sentencing regime is unconstitutionally arbitrary

“The [Eighth] Amendment must draw its meaning from the evolving standards of

decency that mark the progress of a maturing society.” Atkins v. Virginia, 536 U.S. 304, 311-12

(2002) (quoting Trop v. Dulles, 356 U.S. 86 (1958)). “Capital punishment must be limited to

those offenders who commit a narrow category of the most serious crimes and whose extreme

culpability makes them the most deserving of execution.” Roper v. Simmons, 543 U.S. 551, 568

(2005) (quoting Atkins, 536 U.S. at 319). And as a court of last resort, this Court must rely on its

“own judgment ... on the question of the acceptability of the death penalty [for Mr. Otte].” Id.

(quoting Atkins, 536 U.S. at 319). In view of those guiding principles, Mr. Otte’s execution

would be an unconstitutionally arbitrary and capricious event.

The State argues for an execution date by stressing that Mr. Otte committed a double

homicide. (See State’s Motion at pp. 2-3.) The State then argues that Mr. Otte’s execution is “the

only relief that will bring finality to this case: the setting of an execution date.” (Id. at p. 4.)

Neither argument is persuasive in light of the Eighth Amendment’s evolving standards of

decency—standards that the Cuyahoga County prosecutor has relied on in recent years to

reexamine the necessity of imposing the death penalty even in older cases such as Mr. Otte’s.

In 2013, the Cuyahoga County Prosecutor issued a “Narrative Statement For Billy

Slagle’s Clemency Hearing,” in which the Prosecutor explained:

The Cuyahoga County Prosecuting Attorney has instituted a policy of review in all capital cases, as well past convictions that resulted in a death sentence. This review is conducted under strict standards of current law to ensure that only those aggravated murder cases so heinous and deserving that the facts and evidence have the weight to firmly and unanimously convince a jury of 12 or a judicial panel that the aggravating circumstances outweigh any and all mitigating factors beyond any reasonable doubt. Decisions will realistically consider the higher level of evidence required by state and federal appellate courts to uphold death penalty convictions than other types of crimes.

(Exhibit A, attached, at pp. 2-3.)

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The prosecutor’s policy demonstrates a consistency in the direction of change towards the

infrequent use of the death penalty in Cuyahoga County. See Roper, 543 U.S. at 564, 566. This

direction of change—and the infrequent imposition of the death penalty in more recent

Cuyahoga County cases—were factors that contributed to the prosecutor’s recommendation to

the Governor that Slagle’s death sentence be commuted. (See Exhibit A.)

For example, the prosecutor agreed to plead out Alfred Morales’s capital case following a

remand from the Sixth Circuit. (Exhibit B.) Morales was convicted and sentenced to death for

murdering a child in a calculated, vicious manner. State v. Morales, 32 Ohio St. 3d 252, 252-53,

513 N.E.2d 267, 269-70 (1987). His crime was arguably as bad as Mr. Otte’s.

Another example is the case of Reginald Jells. He was convicted of aggravated felony

murder and kidnaping in Cuyahoga County, and his death sentence was affirmed in this Court.

State v. Jells, 53 Ohio St. 3d 22, 559 N.E.2d 464 (1990). Following reversal on federal habeas,

the prosecutor resolved Jells’s case with a plea that removed the death penalty. (Exhibit C.) Jells

was convicted of kidnapping a woman with a young child and then beating her to death, and his

crime was arguably as bad as Mr. Otte’s.

More recently, the prosecutor agreed to resolve Ariel Castro’s case with a plea, despite

the national notoriety that was created by the chilling factual account of Castro’s crimes. Castro

faced a potential death sentence under Revised Code §§ 2903.01 and 2929.04(A)(7) for the

unlawful termination of a victim’s pregnancy during a kidnaping (and Castro committed multiple

counts of kidnaping). The death penalty is an expression of society’s moral outrage. See Gregg v.

Georgia, 428 U.S. 153, 183 (1976). Castro’s well-publicized crimes doubtlessly invoked great

public outrage and revulsion. Nevertheless, the case was ably resolved by the prosecutor without

efforts to secure a death sentence for Castro. Ashley Fantz, “Ariel Castro agrees to plea deal to

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avoid death penalty,” CNN, July, 28, 2013. Castro’s actions were also arguably worse than Mr.

Otte’s.1

Under the Cuyahoga County Prosecutor’s enlightened policy, several potential capital

murder cases have been ably resolved without resort to the death penalty. In terms of moral

culpability, Mr. Otte is no more execution-worthy than any of the defendants that are discussed

in the above-referenced cases. Ohio’s death penalty thus fails at its most basic level. Ohio’s

death penalty statute putatively narrows the class of capital murders from the larger universe of

all offenders who murder, through the inclusion of the capital sentencing specifications found in

O.R.C. § 2929.04(A). But in considering the actual application of the death penalty in Ohio from

one case to the next, it becomes readily apparent that arbitrariness infects the capital selection

process in this state.

Despite the existence of statutory capital specifications, the actual application of the

death penalty in Ohio is devoid of any rational basis to understand why offenders such as Castro,

Jells, and Morales elude execution while an offender such as Mr. Otte must confront the real

prospect of an execution date, even though he is no more morally culpable. And in view of the

Prosecutors’ willingness to resolve several cases without resort to the death penalty, the State’s

argument that only the death penalty will bring finality in this case rings hollow. (See State’s

Motion at p. 4.)

The State stresses that Mr. Otte committed a double homicide to highlight the

appropriateness of the death sentence that was imposed. But this point fails to rebut Mr. Otte’s

assertion that Ohio’s death penalty regime is arbitrary and unreliable because it fails to genuinely

narrow the class of the most extreme offenders from the rest of the offenders in its actual

1 In 2014, the Cuyahoga County Prosecutor also joined in a recommendation to the Governor to commute the death sentence of Arthur Tyler, who, like Mr. Otte, was convicted of a felony murder.

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practice. Data collected and maintained by the Ohio Public Defender’s Office bears out Mr.

Otte’s claim that Ohio’s capital sentencing regime is arbitrary. This data show that several

former death row inmates—who committed multiple murders—were removed from death row.

The Ohio Public Defender maintains data on “Former Death Row Residents Under 1981

Law” on its website. (http://www.opd.ohio.gov/DPResidentInfo/dp-FormerResidents.pdf.) The

data includes a column for the “Victims’ Race,” and for cases in which there is more than one

victim, an Arabic number, preceding the victim’s race, denotes the number of homicide victims

attributed to the particular offender. A copy of this data is attached to this Response as Exhibit D,

attached, with yellow highlights added to the names of those offenders who had convictions for

killing multiple victims.

Thirteen offenders had their death sentences vacated in state or federal court and were

subsequently removed from death row. (Joseph Zuranski, Theodore Soke, Antonio Brooks,

Tyson Dixon, Ronald Combs, Terrell Yarbrough, Kenneth Green, Rhett DePew, Derrick Evans,

Clifton White III, Frederick Dickerson, Vernon Brown, Wayne Frazier.) Two offenders with

multiple murders had their death sentences vacated by independent appellate sentencing review

in this Court (Lawrence and Claytor). Two convicted death row inmates were either acquitted or

had the charges dismissed following relief in the courts (Charles Tolliver, Dale Johnston). Three

offenders with convictions for multiple murders had their sentences commuted by the Governor

(Rosalie Grant, Kevin Keith, Shawn Hawkins).

This data also shows that seventeen convicted offenders with multiple murder victims

were executed. Discounting Dale Johnston and Charles Tolliver—who were acquitted or had

charges dismissed on remand—the number of multiple murders removed from death row

(eighteen) exceeds the number executed (seventeen).2 Bear in mind that each of those offenders

2 Nine convicted multiple murders died of natural causes or accidental death.

http://www.opd.ohio.gov/DPResidentInfo/dp-FormerResidents.pdf

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were convicted of multiple murders, and they all had their cases putatively “narrowed” by capital

specifications found in the Revised Code.

In reality, Ohio’s narrowing regime functions no better than the unconstitutionally

arbitrary regimes that existed before the Supreme Court’s ban on such arbitrariness was imposed

in Furman v. Georgia, 408 U.S. 238 (1972). To a casual observer of Ohio’s capital sentencing

regime, it would appear that a coin flip, a lightning strike, or the whim of a decision maker

provides the difference between a life sentence and the death penalty for a multiple murderer.

Accordingly, Ohio’s capital sentencing regime is, in practice, arbitrary and capricious in

violation of the Eighth and Fourteenth Amendments. See id.; State v. Wogenstahl, 134 Ohio St.

3d 1437, 981 N.E.2d 900 (2013) (O’Neill, J., dissenting) (opposing execution date because death

penalty is cruel and unusual punishment under “evolved” societal standards; “To date, 17 states

and the District of Columbia have eliminated the death penalty altogether. It is clear that the

death penalty is becoming increasingly rare both around the world and in America. By definition

it is unusual.”).3

Mr. Otte’s execution will serve no legitimate government interest

The often-stated justifications for the death penalty are retribution and deterrence. Neither

retribution nor deterrence can, however, justify this Court setting an execution date for Mr. Otte.

The retributive justification for the death penalty makes little sense in this case because

Mr. Otte is not the same person who committed the murders in 1992. Back then, Mr. Otte was a

youthful and immature person. State v. Otte, 74 Ohio St. 3d 555, 567-68 660 N.E.2d 711, 723

(1996) (“Dr. Sandra McPherson, a clinical psychologist, testified that Otte suffers from

depression, immaturity and alienation, and that he has an IQ in the bottom fifteen percent of the

population. She also testified that Otte has ‘diminished capacity for impulse control’ ….”). Otte 3 Since Justice O’Neill’s dissent in Wogenstahl, Nebraska’s unicameral legislature repealed the death penalty over their governor’s veto.

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was just twenty years old when he committed the murders. Id. at 567, 660 N.E.2d at 723.

Importantly, he was addicted to drugs and alcohol and both of his crimes were fueled by his

addictions. Id. at 568, 660 N.E.2d at 723 (“At the age of ten Otte began using drugs and alcohol.

By fourteen or fifteen he was engaged in poly-substance abuse and major alcohol use.”).

Since the murders, twenty-three years have passed, and with the passage of time, Mr.

Otte has matured significantly. He has become a man of faith. He has been a well-behaved

inmate. He is remorseful. He is not the same person now that he was then. Given his maturity

and the fact that his addictions have been in remission for many years, he would not be a threat

to commit such violent acts now.

In other words, the value of retribution is lost because the Gary Otte that deserved to be

punished—the one who robbed and shot people—no longer exists. This is so because risk factors

that put Mr. Otte on a course to commit a double murder twenty-three years ago no longer exist.

Instead, the Gary Otte of today is a man whose adult life has been lost behind bars because he is

still paying for his drug and alcohol addictions, and the awful crimes that resulted from them.

True retribution is achieved through a sentence of life in prison.4 The retributive value of the

death penalty is simply too attenuated to justify killing a man in this type of case.

As for deterrence, it is doubtful that Mr. Otte’s execution would keep anyone from

committing a murder. Potential capital offenders often face the same issues that put Mr. Otte at

risk for becoming a murderer. As with Mr. Otte persons at risk for offending often have the same

types of risk factors: youth, immaturity, troubled and unstable upbringings, and the crushing

weight of drug and alcohol addictions. And as with Mr. Otte, persons at risk of offending often

have deficits in IQ and impulse control, as well as substance addictions, which may impair

executive brain functions. See id. at 567-68, 660 N.E.2d at 723. Accordingly, such potential 4 As such, the State is simply wrong to claim that only the death penalty can bring finality to this case. (State’s Motion at p. 4.)

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offenders have diminished capacities for mature reasoning and sound judgments, especially

when they are in the throes of a substance addiction. Deterrence is a thin reed on which to rest

the death penalty given that the people who commit murders often have mental health issues,

intellectual disabilities, and backgrounds that are not conducive to creating good social

adjustments and mature decisions.

Mr. Otte is presently litigating claims against Ohio’s method of execution

As the State points out, Mr. Otte has exhausted the regular course of his state and federal

appeals. (State’s Motion at 5.) Mr. Otte is not done litigating, however, as he is presently joined

in a civil suit before Judge Frost in the United States District Court for the Southern District of

Ohio in which he challenges Ohio’s use of lethal injection as unconstitutional. In Re: Ohio

Execution Protocol Litigation, Case No. 2:11-cv-1016 (S. Dist. Ohio). At a minimum, this Court

should stay Mr. Otte’s execution date pending the resolution of his civil suit in federal court.

In Justice O’Neill’s Wogenstahl dissent, he discussed the “chilling” account of the State’s

attempt to execute Romell Broom. 134 Ohio St. 3d 1437, 981 N.E.2d 900 (O’Neill, J.,

dissenting). “Although the executioners spent over two hours attempting to find a vein through

which to administer the lethal injection, they ultimately failed.” Id. “Broom remains on death

row today.” Id.

Since the debacle of Broom’s attempted execution, Ohio drew national attention of the

wrong kind following the State’s execution of Dennis McGuire. See Alan Johnson, “Dennis

McGuire’s execution was not humane, doctor says,” The Columbus Dispatch, Aug. 13, 2014.

“McGuire, 53, gasped, choked, clenched his fists and appeared to struggle against his restraints

for about 10 minutes after [the drugs were administered to him].” Id. “It took 26 minutes for him

to die after the drugs were administered ….” Id. An anesthesiologist provided a sworn statement

attesting that “Dennis McGuire experienced ‘true pain and suffering’ ….” Id.

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After the debacle of McGuire’s execution, Oklahoma had extreme difficulty in executing

Clayton Lockett. See Molly Hennessy-Fiske, Matt Pearce and David G. Savage, “Botched

Oklahoma execution stirs outrage, may bring changes,” Los Angeles Times, Apr. 30, 2014.

“[A]s witnesses watched from a prison viewing gallery in McAlester, executioners injected an

experimental cocktail of lethal drugs into Lockett’s body. The 38-year-old murderer was

supposed to fall asleep before the drugs stopped his heart. Instead, according to officials, one of

Lockett’s veins exploded, sending the inmate into a writhing, gasping fit that ended more than

half an hour later with a fatal heart attack.” Id.

In view of Broom, McGuire, and Lockett, there remains a genuine risk that Mr. Otte

could suffer wanton and unnecessary pain if subjected to Ohio’s method of execution by lethal

injection. Further, a safe supply of drugs for use in lethal injection is also in doubt because Ohio

has resorted to obtaining its drugs from undisclosed, compounding pharmacies. See “Lacking

Lethal Injection Drugs, States Find Untested Backups,” NPR, Oct. 26, 2013; Alan Johnson,

“New law will keep lethal-injection supplier secret,” The Columbus Dispatch, Dec. 20, 2014.

Mr. Otte’s civil law suit has merit in light of all these on-going concerns with lethal injection as

Ohio’s method of execution.

Conclusion

“The Eighth Amendment ‘is not fastened to the obsolete but may acquire new meaning as

public opinion becomes enlightened by a humane justice’.” Hall v. Florida, __ U.S. __, 134 S.

Ct. 1986, 1992 (2014) (quoting Weems v. United States, 217 U.S. 349, 378 (1910)). “The Eighth

Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the

Nation we aspire to be.” Id. The evolving standards of decency that guide this Court’s

understanding of the Eighth Amendment should lead to the inexorable conclusion that the State’s

motion should be denied. Imposition of the death sentence in this case would result in an

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arbitrary and unreliable use of the death penalty. The retributive function of the death penalty is

too attenuated in this case because, like the Eighth Amendment, Gary Otte has also evolved and

matured. And troubling concerns with Ohio’s method of execution remain and should be

addressed in Mr. Otte’s federal civil law suit.

This Court should deny the State’s motion with prejudice. Alternatively, this Court

should, at a minimum, deny the State’s motion until Mr. Otte’s federal civil law suit is resolved.

Respectfully submitted,

/s/ Joseph E. Wilhelm JOSEPH E. WILHELM (0055407) Assistant Federal Public Defender joseph_wilhelm@fd.org

VICKI RUTH ADAMS WERNEKE (0088560) Assistant Federal Public Defender vicki_werneke@fd.org JILLIAN S. DAVIS (0067272) Research and Writing Attorney jillian_davis@fd.org Office of the Federal Public Defender Northern District of Ohio Capital Habeas Unit 1660 West Second Street, #750 Cleveland, OH 44113 (216) 522-4856 (216) 522-1951 (fax) Counsel for Appellant

mailto:joseph_wilhelm@fd.orgmailto:vicki_werneke@fd.orgmailto:jillian_davis@fd.org

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CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing APPELLANT GARY OTTE’S

RESPONSE OPPOSING THE STATE’S MOTION TO SET EXECUTION DATE was sent

by ordinary U.S. mail, postage prepaid, to Timothy J. McGinty, Cuyahoga County Prosecutor,

and Christopher Schroeder, Assistant Prosecuting Attorney, The Justice Center, Courts Tower,

1200 Ontario Street, 8th Floor, Cleveland, OH 44113, on the 26th day of June, 2015.

/s/ Joseph E. Wilhelm JOSEPH E. WILHELM (0055407) Assistant Federal Public Defender Counsel for Appellant

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