Tuesday, November 25, 2008

Today's misleading headline of the day

From the Hamilton Pulse Journal: "Convicted killer may walk free"

That's the headline. Now when I read a headline like that, I expect that the news article is about how some guy was recently found guilty of murder, but through some weird technicality, is going to walk free without spending any time in prison for murder. Correct me if you think that's an unreasonable presumption.

However, that's not at all what the story is about. It's about a guy who was sentenced in 1984 to die for a murder he committed in 1983. A murder he committed while on parole for stabbing his wife to death in 1970. The guy is a double-murderer who committed his second murder while on parole for the first!

Regardless, it's a crime that happened 25 years ago. So how is he going to "walk free?"

Well in 1988, the Ohio Supreme Court ruled that the three-judge panel (which heard the case in lieu of a jury... three-judge panels must hear any bench trial in a capital case) misapplied the law in Ohio and considered criminal acts as aggravating factors (reasons to sentence Davis to death) things that the Ohio legislature did not specifically permit a sentencing court to consider as an aggravating factor. Because the court found four mitigation factors against death but five aggravating factors (including the ones not authorized by the death penalty statute), the Ohio Supreme Court remanded the case to the trial court for a proper sentencing. However, despite the prior improper death penalty sentence, the Ohio Supreme Court specifically permitted the trial court to still consider a death penalty sentence on remand.

In January 2007, a federal court found that the trial court, during the resentencing, failed to admit into evidence that should have considered as mitigating circumstances against the death penalty and again remanded the case to the trial court for yet another resentencing in which the death penalty could be considered.

Under the law as it existed in 1983 (which is what Davis must be resentenced under), he can either be sentenced to death, life with the possibility of parole in thirty years, or life with the
possibility of parole in twenty years.

And that's how the paper concludes that this twice-convicted killer could, theoretically "walk free." Since he's already served twenty-five years in prison, the trial court, on the third bite of the apple, give him the minimium sentence possible and the guy could be released on parole at his earliest opportunity. Only under that specific scenerio can anyone legitimately claim that multiple murderer could "walk free." He walks free after serving his sentences and being released on parole based on a positive recommendation that he be released by the Ohio Parole Board. A highly improbable event for a guy who committed murder while on parole.

And yet, that didn't keep the headline writers in the local paper from panicing or Butler County Prosecutor Robin Piper for fearmongering:

"It is a very important case," said Butler County Prosecutor Robin Piper. "It's
scary important, because this man could conceivable be released if he is given
one of the life options."

The Sicilian from "The Princess Bride" had a better understanding of the inconceivable as Piper understands the term conceivable.

Would it be theoretically possible? Sure, Ohio law at the time allowed for someone who committed aggravated murder in 1983 to possibly be released by now if the Adult Parole Board felt it prudent. However, that ignores the fact that Ohio's laws even then only created the possibility of parole, it did not require it. And even under 1983 Ohio law, guys who committed murder while on parole don't then get released on parole, especially on the earliest possible moment.

There are plenty of valid reasons to argue that the State of Ohio should be allowed to stick a needle in Von Clark Davis' arm and pump him with a cocktail of drugs until he is dead. Lord knows it would be a more merciful death than he's ever given either of his victims. However, the mere fact that he could, in theory, be released on parole at some point unless he's sentenced to death has to be the oddest argument I've ever seen for a death penalty in a particular case.

It sure as heck doesn't justify the headline. A more accurate headline would be "Twenty-five years after murder, Ohio trial court has still failed to adhere to Ohio's death penalty law in capital murder case." Or, "County Prosecutor believes Ohio Parole Board might release twice convicted murderer."

However, where's the real journalism in this story? Where does a reporter ask the real question: how likely is it that this guy would ever really be released on parole? He's 62 now; he was 37 at the time of his last offense. Why would the county prosecutor make such a ridiculous claim? (Other than lower the expectations he'll know he'll beat, only then to trump his "major" victory when the court... shock.... sentencing the guy to death again. Pumping drama in a story that lacks it.) Why no focus on the fact that this guy has been sent to death row twice for the same crime only to have the courts later reject his sentence as being legally invalid both times? Does anyone honestly believe that a twice convicted murder, who committed his last crime while on parole, would be released again? How many defendants who have the kind of record as Davis has are sentenced to the statutory minimum sentence and serve the statutory minimum amount of time after committing their last crime while on parole? Has anyone ever gotten that kind of treatment?

Let me answer that question. No, nobody knowledgeable about the law honestly believes that this guy is going to "walk free" unless he's sentenced to death again. And that's just an example of how tradition media fails in its coverage on reporting on the law more often than not.

The idea that this guy would be released on parole would be laughable if it weren't been made as an argument to kill him as an acceptable alternative.

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