Wednesday, July 26, 2000

Tactics in trials criticized

High court rails against prosecutors

By Spencer Hunt
Enquirer Columbus Bureau

        COLUMBUS — For the fifth time in as many years, Ohio Supreme Court justices have openly criticized the tactics Hamilton County prosecutors use to win death sentences in murder cases.

        The most recent scolding came Tuesday, as the high court heard oral arguments concerning convicted murderer Elwood Jones. The Cincinnati man was sentenced to die for the 1994 beating death of a New Jersey grandmother, Rhoda Nathan, at a Blue Ash hotel.

        Mr. Jones, who was a hotel employee, claims his attorneys should have done a better job defending him. He also complains prosecutors went too far in their efforts to convict him.

        Prosecutors cannot make statements that stray from fact in cases or that portray the defense as dishonest. While the high court has not overturned any local death penalties, justices have taken Hamilton County prosecutors to task for stretching or breaking these rules in four murder cases since 1996.

        Chief Justice Thomas J. Moyer and Justice Andrew Douglas appeared frustrated to see similar complaints in Mr. Jones' case.

        “How do we stop prosecutors from engaging in conduct that we tell them time and time again is improper?” Justice Moyer asked.

        Justice Douglas wondered aloud whether the Hamilton County prosecutor's office has a different definition of the law prosecutors must follow to argue criminal cases.

        Hamilton County Prosecutor Michael K. Allen said in an interview that his office will do everything it can to make sure it follows the law and the high court's directions. At the same time, he defended his prosecutors.

        “We struggle in this office on a daily basis on what we can and cannot say in capital cases,” he said. “Defense counsel faces no limits.”

        Mr. Jones' attorney, Elizabeth E. Agar, said prosecutors were wrong to describe a doctor who testified for the defense as a “paid defense expert.” She said that implied he was a hired gun who would say anything the defense wanted.

        Ms. Agar's legal brief said prosecutors should not have told jurors Ms. Nathan's life had no more value to Mr. Jones than her necklace pendant. Police found Ms. Nathan's pendant and a hotel master key in Mr. Jones' car.

        “The jury doesn't forget they've been told that,” Ms. Agar said.

        Ms. Agar also said Mr. Jones' defense lawyers made a mistake when they did not try to block testimony of another doctor who treated Mr. Jones for an injured hand.

        Ms. Agar said Dr. John McDonough violated patient confidentiality rules when he testified that Mr. Jones' injury was fight-related. Dr. McDonough told jurors a type of bacteria discovered in Mr. Jones' wound hand can only be found in the human mouth.

        Ronald Springman, an assistant Hamilton County prosecutor, said there was nothing wrong with the testimony because doctors are required to report violence-related injuries to the police.

        The question now is whether any of this is enough to persuade the justices to reverse the death penalty. The high court has not reversed a Hamilton County death penalty case over misconduct complaints.

        Justice Moyer and Justice Paul E. Pfeifer did deliver a harsh critique last September in an unrelated Hamilton County murder case. The court ruled 5-2 to uphold Angelo Fears' conviction and death penalty for the 1997 murder of a 16-year-old Over-the-Rhine boy during a drug-related robbery.

        Among other things, Mr. Fears' attorneys argued it was wrong for prosecutors to refer to a psychologist as the defense counsel's “mouthpiece.” Justice Moyer agreed, and said he would have reversed the death sentence and ordered a new sentencing hearing.

        Mr. Allen said prosecutors are well aware of the Fears ruling and have undergone in-house training to avoid similar mistakes. He said Mr. Jones' trial occurred well before the Fears ruling was handed down.

        “Obviously we do not want to do or say anything in a case that the Supreme Court does not want us to say,” Mr. Allen said. “The problem is where do you draw the line? You have to be aggressive and you have to be persuasive.” Of the 199 death row inmates in Ohio, 47 were sentenced in Hamilton County, the most of any county in the state.


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