By Janice Morse
The Cincinnati Enquirer

Calling former Hamilton County Prosecutor Joseph Deters' remarks in a murder case "improper and flagrant," a U.S. magistrate judge has ruled that a death row inmate should be re-sentenced.

"This decision brings Bobby Shepphard a major step closer to being removed from death row," Tim Payne, an assistant Ohio public defender said Thursday.

Shepphard, also called "Sheppard" in some records, was convicted of shooting to death Dennis Willhide, 56, of Harrison, while robbing his College Hill drive-through in 1994. The slaying was captured on surveillance videotape. Shepphard, now 29, has been imprisoned awaiting execution since 1995.

Deters, now state treasurer, criticized the decision. "I think it's just nonsense," he said. "Our comments were very appropriate. ... This poor man was laid on the floor and executed, and the jury saw everything, including the defendant's behavior the entire time."

But a 110-page decision issued Tuesday could mean Shepphard, formerly of Springfield Township, will receive life in prison instead, Payne said.

The ruling still requires a federal judge's approval and then could be appealed. In 2000, an Enquirer story pointed out that one of every three Hamilton County death sentences since 1988 contained critical errors that could help condemned killers delay or avoid execution. The Shepphard case was among those cases.

In his decision this week, U.S. Magistrate Judge Michael R. Merz said, "While the evidence against (Shepphard) at the guilt phase of the trial was overwhelming, the same cannot be said of the separate penalty phase."

Deters made repeated comments to the jury "denigrating the integrity of defense counsel and (a psychologist)," Merz said. The psychologist testified he believed Shepphard was suffering from mental illness after sustaining a head injury in a 1993 car wreck.

Merz said it was improper for Deters to:

• Call the psychologist "slick."

• Speculate that the defense would have put on false or untruthful evidence if not for the videotape.

• Tell jurors they were best able to assess Shepphard's mental condition because they had viewed his actions on the video.

Deters said that, if U.S. District Court Judge Walter Rice agrees with Merz's decision, Ohio Attorney General Jim Petro will have to decide whether to appeal.

Payne said the case could remain tied up for a couple more years because of the legal issues.

E-mail jmorse@enquirer.com