STUDYTASK FORCERECOMMENDATIONS

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The American Bar Association (ABA), whose mission is “to serve… the public by defending liberty and delivering justice as the national representative of the legal profession”, released a report on Ohio’s death penalty in 2007.

The report was troubling: Ohio fell short in 93% of the ABA standards for a fair and accurate state death penalty system.

In response to this overwhelming deficit, Ohio Supreme Court Chief Justice Maureen O’Connor created the Joint Task Force to Review the Administration of Ohio’s Death Penalty in 2011.

The Task Force was comprised of judges, prosecutors, defense attorneys and academics. These experts met and discussed the many problems presented in the ABA report. After two years of review, the Task Force concluded its work in November of 2013.


How to use this tool:

  • Use the tabs below to explore the recommendations organized by their respective subcommittee.
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Race & Ethnicity

Recommendation Subcommittee Vote Task Force Vote

1. Insert summary of task force recommendation here.

Mandate through the Rule 20 committee that all attorneys who are practice capital litigation must take a certain number of CLE hours on this topic. Mandate the creation of and mandatory attendance for prosecutors who prosecute death penalty cases to attend training that educates them on how to protect against racial bias in the arrest, charging, and prosecution of death penalty cases. Mandate that Judges assigned to death penalty cases must have attend specialized training regarding racial bias in death cases and how to protect against it.Mandate that any judge who reasonably believes that any state actor has acted on the basis of race in a capital case be reported to the Office of Disciplinary Counselor to the appropriate supervisory authority, if not an attorney.

4-0 12-2 Read More

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2. Insert summary of task force recommendation here.

Mandate through the Rule 20 committee that all Rule 20 approved trainings must include at least one hour of training regarding the development of discrimination claims in death penalty cases and trained to preserve Batson issues for appellate review.

4-0 13-1 Read More

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3. Insert summary of task force recommendation here.

Mandate that an attorney must seek the recusal of any judge where “a reasonable basis for concluding that the judge’s decision making could be affected by racially discriminatory factors” and should the judge not recuse, if the attorney still believes there is a reasonable basis for concluding that the judge’s decision making could be affected by racially discriminatory factors then the attorney shall file an affidavit of bias with the Chief Justice of the Ohio Supreme Court.

4-0 8-5 Read More

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4. Insert summary of task force recommendation here.

Based upon attached data showing that prosecutors and juries overwhelmingly do not find Felony Murder to be the worst of the worst murders, further finding that such specifications result in death verdicts 7% of the time or less when charged as a death penalty case, and further finding that removal of these specifications will reduce the race disparity of the death penalty , it should be recommended to the legislature that the following specifications be removed from the statutes: Kidnapping, Rape, Agg Arson, Agg Robbery, and Agg Burglarly.

4-0 12-2 Read More

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5. Insert summary of task force recommendation here.

To address cross jurisdictional racial discrepancy it is recommended that Ohio create a Death Penalty charging committee at the Ohio Attorney General’s Office. It is recommended that the committee be made up of former county prosecutors appointed by the Governor and members of the Ohio Attorney General’s staff. County Prosecutors would submit cases they want to charge with death as a potential punishment. The Attorney General’s office would approve or disapprove of the charges paying particular attention to the race of the victim(s) and defendant(s).

4-0 8-6 Read More

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6. Insert summary of task force recommendation here.

Enact legislation allowing for these types of claims to be raised and developed in State Court through a Racial Justice Act with such a claim being independent of whether the client has any other basis for filing in that court.

4-0 13-1 Read More

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Clemency

Recommendation Subcommittee Vote Task Force Vote

1. Insert summary of task force recommendation here.

There should be a codification of the right to have counsel present at the clemency hearing.

3-0 15-0 Read More

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Law Enforcement

Recommendation Subcommittee Vote Task Force Vote

1. Insert summary of task force recommendation here.

Subject to the special rule specified in 1(a) below, if evidence of the sort customarily subject to testing in a laboratory in a death penalty case is not originally reviewed by an accredited lab, then the defendant has the right to have the evidence reviewed a second time by an accredited lab. More specifically, any prosecution evidence that has not been tested in an accredited lab shall be retested in an accredited lab, at the request of the defendant and at the state’s expense. If such a request is made, there will be no reference to the first test (in a non-accredited lab) except as may be necessary to establish chain of custody. Defense forensic experts shall also be required, by Supreme Court Rule, to rely on testing by accredited labs, at the request of the prosecution, in death penalty cases.

a. The following rules will apply to death-penalty-eligible cases in which testing of evidence is performed under circumstances that will likely entail the total consumption or destruction of the evidence to be tested:

i. Where the testing is performed prior to indictment, the testing must be performed in the first instance by an accredited lab;

ii. Where the testing is performed subsequent to indictment, the testing must be performed by an accredited laboratory and the court to which the case is assigned must grant prior permission, with notice to the parties, for the test.

In the event the foregoing rules in this Section 1(a) are not observed, the results of the test shall be presumptively inadmissible, but the presumption may be overcome by good cause shown to the court to which the case is assigned, and if the court deems such evidence to be admissible, the court shall appropriately instruct the jury on the weight that it may choose to give that evidence. This recommendation does not apply to fingerprint evidence. “Accredited lab” means a lab that is accredited by any of the following: American Society of Crime Laboratory Accreditation Board (ASCLD/LAB); Forensic Quality Services, A.K.A. National Forensic Science Technology Center; or American Association for Laboratory Accreditation (AALA).

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2. Insert summary of task force recommendation here.

Require that each coroner’s office become accredited by the National Association of Medical Examiners (NAME), or have at least one person on staff or under contract who is a fellow of that organization (and who performs the procedure in the case), or have in place a contract with an accredited crime lab. Such a requirement would not require the coroner to refer all post mortems, and would preserve the coroner’s judgment as to which ones involved criminal activity. However, it would guarantee that the office either has successfully sought accreditation or has in place contracts with properly trained people to perform these kinds of specialized services when in the coroner’s judgment the need arises.

7-0 18-1 Read More

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3. Insert summary of task force recommendation here.

Any in custody interrogation, as defined by Miranda v. Arizona, shall be electronically recorded. If the interrogation is not electronically recorded, statements made during the interrogation are presumed involuntary.

7-0 13-5 Read More

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Disparity

Recommendation Subcommittee Vote Task Force Vote

1. Insert summary of task force recommendation here.

The Supreme Court of Ohio by court rule should mandate that, prospectively, all death eligible homicides be reported to a central warehouse both at the charging stage and at the conclusion of the case at the trial level.

4-0 15-1 Read More

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Judicial Role

Recommendation Subcommittee Vote Task Force Vote

1. Insert summary of task force recommendation here.

Implementation of enhanced mandatory, educational and minimum experience and/or certification requirements for all participating legal counsel (appointed and retained) and all Ohio Judges (including Common Pleas, Appellate and Supreme Court) to allow for their participation in a Capital Case. The Ohio Judicial College could be utilized as the vehicle to implement the mandatory educational requirements for Judges. Certain minimum standards for the appointment and performance of legal counsel (appointed and retained) in Capital Cases should be set forth in the Rule and could, in exceptional circumstances, be waived, with the consent of the Ohio Supreme Court, if it is determined that the attorney’s ability or the Judge’s qualification otherwise exceeds the standards required by the Rule. (The adoption of this Rule would require some amendment or modification to Sup. R. 20.)

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2. Insert summary of task force recommendation here.

Implementation of educational guidance for Presiding Judges as to when and how to intervene (procedure to follow) in situations of potential ineffective lawyering. Additional guidance should also be emphasized to assure effective utilization of the Recusal Process by Participating Legal Counsel, when incurring issues of preconceived opinions or otherwise prejudicial positions of Trial Judges. (Committee Note: For clarification, the educational guidance would highlight procedures for recognizing these issues in such a way that the Trial Court would not damage or undermine the client’s confidence in his or her legal counsel. However, the Committee also recognizes that if ineffective assistance of counsel is found, the Court has a duty to step in and address the issue.)

5-0 17-4 Read More

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3. Insert summary of task force recommendation here.

Adoption of an Order directing that a presiding Trial Judge, or the Administrative Judge, in conformity with Sup. R. 20, is the appropriate authority to appoint legal counsel in a Capital Case.

5-0 14-5 Read More

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4. Insert summary of task force recommendation here.

It is specifically recommended that increased funding be provided to the Office of the Ohio Public Defender, by statute, to allow for additional hiring and training of qualified Capital Case defense attorneys, who could be made available to all Ohio counties, except in circumstances where a conflict of interest occurs, at which time a separate list of prospective appointed counsel would be provided.

5-0 20-0 Read More

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5. Insert summary of task force recommendation here.

In addition, the Committee recommends that the Supreme Court should take the lead to adopt a uniform process for the selection of indigent counsel in Capital Cases, including the establishment of a uniform fee and expense schedule, all of which would be included in the proposed Criminal Rule for Capital Cases.

5-0 20-0 Read More

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6. Insert summary of task force recommendation here.

In the event the Task Force would recommend the present process of appointment of indigent counsel by the Judiciary, the main objective should always be to assure the best educationally and experienced-qualified candidate, who is available (within the county or outside the county), and who is otherwise willing to take on the responsibilities associated with the case for an appropriate fee and accompanying expenses. A uniform fee schedule for such services across the State of Ohio must be a necessary consideration to assure the equal protection of enhanced due process for each County in the State.

5-0 21-0 Read More

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7. Insert summary of task force recommendation here.

Embodiment of reporting standards to provide complete transparency of record, including requirements to ensure better record-keeping by the trial judge and the provision of additional, detailed resource information necessary to assure strict compliance with due process, which information shall be submitted to the Supreme Court upon completion of the case. Such resource information may include unique Constitutional issues, unique evidentiary issues, significant motions, plea rationale, pre-sentence investigation, and any additional information required by Rule 20 Committee or Supreme Court. Additional types of resource information could be developed as part of mandated educational process conducted by the Ohio Judicial College.

5-0 16-0 Read More

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8. Insert summary of task force recommendation here.

Amend R.C. §2929.03 (F) to include the necessity for a Prosecutor’s rationale of a proposed plea agreement, on the record, for any indicted capital offense that results in a plea for a penalty less than death.

5-0 15-1 Read More

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9. Insert summary of task force recommendation here.

Adoption of an order requiring implementation of mandatory pre-trial conferences and appropriate Judicial College education to emphasize the necessity for conducting such conferences, all of which must be on the record, to begin at the earliest stages of the case and to address issues pertaining to discovery, Brady disclosures, and appointment of experts. After inquiry by Court as to status of discovery, counsel for state and defendant shall be ordered to declare their compliance with all discovery obligations and the State shall affirmatively assert disclosure of all exculpatory matters pursuant to Brady.

5-0 10-5 Read More

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10. Insert summary of task force recommendation here.

Adoption of an Order, in the case of a Pro Se Defendant who is competent to stand trial but may not be competent to represent himself or herself because of a mental health or developmental disability, directing either the appointment of counsel to conduct the Trial or to act as “stand-by counsel” or “co-counsel” to assist the Pro Se defendant, or to assume or resume to proceed with Trial as counsel of record, in the event Defendant changes mind about proceeding as a Pro Se litigant.

Note re: Indiana v. Edwards, 554 U.S. 164

5-0 11-1 Read More

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11. Insert summary of task force recommendation here.

Adoption of an Order directing the Trial Judge is the appropriate authority for the appointment of experts for indigent Defendants. The Order further provides that the decision pertaining to the appointment of experts shall be made, on the record, at one of the prescribed Pre-Trial Conferences.

If Defense counsel requests, the demand for appointment of the expert shall be made in-camera ex parte, and the Order concerning the appointment shall be under seal.

Upon establishing counsels’ respective compliance with discovery obligations, the question of the appointment of experts (including determination of projected expert fees based upon analyses of expert’s time to be applied to the case as well as consideration of incremental payment of expert fees as case progresses) would be decided by the Court, which decision would be subject to immediate appeal, under seal, to the appropriate Court of Appeals. The trial court judge shall make written findings as to the basis for any denial. Although concerns have been raised as to the ability of the Appellate Court to provide the anticipated, necessary expedited hearing within a reasonable time-frame, the Committee suggests that this issue be elevated to the status of Final Appealable Order and that the necessary expedited appellate process be spelled out in the Statute.

5-0 13-5 Read More

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12. Insert summary of task force recommendation here.

Adoption of a separate Criminal Rule for Capital Cases that provides: (8) in the event the ABA guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases and the Supplementary Guidelines for the Mitigation Function of Defense Teams are adopted, in the entirety, it will be necessary to determine whether the ABA guidelines are merely guides for defense counsel to follow or to be applied as standards to be monitored and enforced by the trial court. In either event, the trial court in accord with Sup.R. 20.03, shall take appropriate steps, on the record, to monitor and/or enforce a checklist of guidelines. Due to the number of guidelines, their complexity, issue pertaining to attorney-client privilege and the propriety of court inquiry, the degree of monitoring and/or enforcement and the manner of proceeding must be addresses by the Supreme Court of Ohio and the Ohio Judicial College in the Capital Crimes seminar.

5-0 16-0 Read More

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Post-Conviction

Recommendation Subcommittee Vote Task Force Vote

1. Insert summary of task force recommendation here.

That the time frame for filing a post-conviction motion be extended from one hundred eighty (180) days after the filing of the trial record to three hundred sixty five (365) after the filing of the trial record. Section 2953.21(A)(1)(c)(2) would read as follows:

Except as otherwise provided in section 2953.23 of Revised Code, a petition under division (A)(1) of this section shall be filed no later than three hundred
sixty-five (365) days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or
adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court. If no appeal is taken,
except as otherwise provided in section 2953.23 of the Revised Code, the petition shall be filed no later than three hundred sixty five (365) days after
the expiration of the time for filing the appeal.

7-0 17-0 Read More

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2. Insert summary of task force recommendation here.

Rule 20 of the Rules of Superintendence for the Courts of Ohio be modified, adding Section (E). Section (E) would read as follows:

(E) Post-Conviction Counsel. Post-conviction counsel shall satisfy all of the following qualifications:

1. Be admitted to the practice of law in Ohio or admitted to practice Pro Hac Vice;
2. Have at least three years of civil or criminal litigation or post-conviction experience in Ohio;
3. Have specialized training, as approved by the committee, on subjects that will assist counsel in the post-conviction of cases in which the death penalty was imposed in the two years prior to making the application;
4. Have experience as counsel in the post-conviction of at least three felony convictions in the seven years prior to making the applications.

7-0 18-0 Read More

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3. Insert summary of task force recommendation here.

The Judge hearing the case must state specifically why each claim was either denied or granted in the findings of fact and conclusions of law.

5-0 19-0 Read More

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4. Insert summary of task force recommendation here.

The common pleas clerk shall retain a cop[y of the original trial file in the common pleas clerk’s office even though it sends the originals to the Supreme Court of Ohio in connection with the direct appeal.

5-0 19-0 Read More

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5. Insert summary of task force recommendation here.

There shall be no page limits in death penalty cases in either the petition filed with the common pleas court or on direct appeal from the denials of such petition.

5-0 14-3 Read More

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6. Insert summary of task force recommendation here.

The Ohio Judicial Conference shall study the Ohio Jury Instructions to make clear that a jury must always be given the option of extending mercy that arises from the evidence as cited in Justice Scalia’s dissent in Morgan v. Illinois, 504 U.S. 719, 751 citing Woodson v. North Carolina, 428 U.S. 303-305

10-8 Read More

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7. Insert summary of task force recommendation here.

Amend R.C. 2953.21, as attached in Exhibit B, to these recommendation to provide for depositions and subpoenas during discovery in post-conviction relief.

13-3 Read More

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Defense Services

Recommendation Subcommittee Vote Task Force Vote

1. Insert summary of task force recommendation here.

Adopt the 2003 American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in death penalty cases.

5-0 12-2 Read More

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2. Insert summary of task force recommendation here.

Adopt the Supplementary Guidelines for the Mitigation Function of Defense Teams in death penalty cases.

5-0 13-4 Read More

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3. Insert summary of task force recommendation here.

Enact legislation to consider and exclude from eligibility for the death penalty defendants who suffered from “serious mental Illness,” as defined by the legislature at the time of the crime.

Appropriate questions for the legislature to consider include:

• Whether “serious mental illness,” is causally related to the crime?
• Whether the determination of “serious mental illness,” should be considered before trial or at some time as determined by the legislature?
• Whether the issue is already adequately addressed by the current law?

5-0 15-2 Read More

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4. Insert summary of task force recommendation here.

Enact legislation to provide that private defense counsel appointed to represent death eligible defendants or those sentenced to death are equally paid throughout the state regardless of the location of the offense.

5-0 16-0 Read More

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5. Insert summary of task force recommendation here.

Enact legislation to require all crime labs in Ohio must be certified by a recognized agency as defined by the Ohio legislature.

5-0 10-6 Read More

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6. Insert summary of task force recommendation here.

To ensure a more representative jury pool, enact legislation that requires every jurisdiction to create jury pools from voter lists of all registered voters and all licensed drivers who are US citizens rather than only the voter registration list.

5-0 12-2-1 Read More

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7. Insert summary of task force recommendation here.

Ohio legislature and Ohio Supreme Court implement and fund a state-wide public defender system for representation of indigent persons in all capital cases for trials, appeals, post-conviction and clemency except where a conflict of interest arises; in cases of conflicts of interest, qualified Rule 20 counsel shall then be appointed.

4-0 13-3 Read More

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8. Insert summary of task force recommendation here.

The Ohio Judicial Conference shall, on an annual basis, work with attorneys and judges, to review and revise as necessary the jury instructions in death penalty cases to ensure that jurors understand applicable law. In particular, the OJC shall request, on an annual basis, input from the Ohio Prosecuting Attorney’s Association, the Ohio Association of Criminal Defense Lawyers, the Ohio Public Defender, and the members of the Ohio Judicial Conference.

4-0 16-0 Read More

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9. Insert summary of task force recommendation here.

The Ohio Judicial Conference shall review and revise as necessary the Ohio Jury Instructions to institute the use of “plain English,” and “plain English,” shall be used throughout capital trials.

4-0 14-1-1 Read More

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10. Insert summary of task force recommendation here.

In capital cases, jurors shall receive written copies of “court instructions” (the judge’s entire oral charge) to consult while the court is instructing them and while conducting deliberations.

4-0 16-0 Read More

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11. Insert summary of task force recommendation here.

Enact legislation to exclude from eligibility from the death penalty defendants who suffer from “serious mental illness,” at the time of execution.

5-0 12-7 Read More

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12. Insert summary of task force recommendation here.

Enact legislation or administrative regulation to provide that death penalty clemency proceedings in Ohio include:

a. The parole board hearing must be recorded by audio, video or court stenographer and be a public record;
b. The interview of the condemned inmate must be recorded by audio, video or court stenographer and be a public record;
c. The inmate’s counsel must be allowed to counsel the client in the interview;
d. The parole board must reveal to counsel for the defendant and the state all documents, witnesses and information it will consider in reaching its decision;
e. The inmate’s master file must be released to his/her counsel at least six months before the parole board hearing;
f. Counsel for inmate and state must disclose and exchange all information to be relied upon at the parole hearing at least 30 days before the hearing with attorney certification and a continuing duty to disclose;
g. Identify a funding mechanism, such as a capital litigation fund, for inmate’s mental health expert of state expert so that an expert can be hired in a timely manner for the parole board hearing;
h. The legislature should ensure adequate funding, such as capital litigation fund, for private counsel who prepare for and represent a condemned inmate at the parole board hearing;

4-0 a. 17-1
b. 16-2
c. 11-8
d. 18-1
e. 18-0
f. 18-0
g. 12-2
h. 11-1
i. 18-0
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13. Insert summary of task force recommendation here.

Require annual mandatory training for all parole board members for a minimum of six hours by mental health and forensic experts and by others relevant to death penalty issues.

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14. Insert summary of task force recommendation here.

Enact legislation that does not permit a death sentence where the state relies solely on jailhouse informant testimony that is not independently corroborated at the guilt/innocence phase.

4-0 19-0 Read More

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15. Insert summary of task force recommendation here.

Enact legislation that will require a prosecutor to present to the Grand Jury available exculpatory evidence of which the prosecutor is aware.

4-0 10-9 Read More

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16. Insert summary of task force recommendation here.

The legislature should study how best to support families of murder/homicide victims in the short and long term.

4-0 10-9 Read More

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17. Insert summary of task force recommendation here.

Amend Sup.R. 20 in the manner attached hereto as Exhibit A.

3-0-1 18-0 Read More

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18. Insert summary of task force recommendation here.

Enact legislation to require prospective proportionality review in death penalty cases to include cases where the death penalty was charged in the indictment or information but not imposed.

10-7 Read More

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19. Insert summary of task force recommendation here.

Enact legislation that allows a defendant to withdraw his or her wavier of a jury trial in either the guilt or penalty phase if either phase is reversed by a reviewing court.

11-7 Read More

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20. Insert summary of task force recommendation here.

Enact and fund a capital litigation fund to pay for all costs, fees, and expenses.

19-0 Read More

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21. Insert summary of task force recommendation here.

The Ohio Rules of Practice and Procedure shall be amended so that the properly presented motion must be accepted for filing for a ruling by the court in a death penalty case.

18-0 Read More

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22. Insert summary of task force recommendation here.

Enact a court rule that shall allow prosecutors and defendant’s attorneys in death penalty cases full and complete access to all documents, statements, writings, photographs, recordings, evidence, reports or any other file materials in possession of the state, any agent or agency of the state, or any police agency involved in a case, or in the possession of the defendant’s attorneys which is known to exist or which, with due diligence, can be determined to exist and to allow the attorneys to inspect, test, examine, photograph or copy the same. This shall not be construed to require the disclosure of attorney work product or privileged matters, not to the disclosure of inculpatory information possessed by the defendant’s attorneys described in Crim.R. 16(H)(3), nor to materials protected by Crim.R. 16.

17-0 Read More

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23. Insert summary of task force recommendation here.

Enact legislation that maintains that a death sentence cannot be considered or imposed unless the state has either: 1) biological evidence or DNA evidence that links the defendant to the act of murder; 2) a videotaped, voluntary interrogation and confession of the defendant to the murder, or 3) a video recording that conclusively links the defendant to the murder; or 4) other like factors as determined by the General Assembly.

4-0 12-6 Read More

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All Recommendations

Recommendation Subcommittee Subcommittee Vote Task Force Vote

1. Insert summary of task force recommendation here.

Mandate through the Rule 20 committee that all attorneys who are practice capital litigation must take a certain number of CLE hours on this topic. Mandate the creation of and mandatory attendance for prosecutors who prosecute death penalty cases to attend training that educates them on how to protect against racial bias in the arrest, charging, and prosecution of death penalty cases. Mandate that Judges assigned to death penalty cases must have attend specialized training regarding racial bias in death cases and how to protect against it.Mandate that any judge who reasonably believes that any state actor has acted on the basis of race in a capital case be reported to the Office of Disciplinary Counselor to the appropriate supervisory authority, if not an attorney.

Race & Ethnicity 4-0 12-2 Read More

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2. Insert summary of task force recommendation here.

Mandate through the Rule 20 committee that all Rule 20 approved trainings must include at least one hour of training regarding the development of discrimination claims in death penalty cases and trained to preserve Batson issues for appellate review.

Race & Ethnicity 4-0 13-1 Read More

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3. Insert summary of task force recommendation here.

Mandate that an attorney must seek the recusal of any judge where “a reasonable basis for concluding that the judge’s decision making could be affected by racially discriminatory factors” and should the judge not recuse, if the attorney still believes there is a reasonable basis for concluding that the judge’s decision making could be affected by racially discriminatory factors then the attorney shall file an affidavit of bias with the Chief Justice of the Ohio Supreme Court.

Race & Ethnicity 4-0 8-5 Read More

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4. Insert summary of task force recommendation here.

Based upon attached data showing that prosecutors and juries overwhelmingly do not find Felony Murder to be the worst of the worst murders, further finding that such specifications result in death verdicts 7% of the time or less when charged as a death penalty case, and further finding that removal of these specifications will reduce the race disparity of the death penalty , it should be recommended to the legislature that the following specifications be removed from the statutes: Kidnapping, Rape, Agg Arson, Agg Robbery, and Agg Burglarly.

Race & Ethnicity 4-0 12-2 Read More

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5. Insert summary of task force recommendation here.

To address cross jurisdictional racial discrepancy it is recommended that Ohio create a Death Penalty charging committee at the Ohio Attorney General’s Office. It is recommended that the committee be made up of former county prosecutors appointed by the Governor and members of the Ohio Attorney General’s staff. County Prosecutors would submit cases they want to charge with death as a potential punishment. The Attorney General’s office would approve or disapprove of the charges paying particular attention to the race of the victim(s) and defendant(s).

Race & Ethnicity 4-0 8-6 Read More

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6. Insert summary of task force recommendation here.

Enact legislation allowing for these types of claims to be raised and developed in State Court through a Racial Justice Act with such a claim being independent of whether the client has any other basis for filing in that court.

Race & Ethnicity 4-0 13-1 Read More

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7. Insert summary of task force recommendation here.

There should be a codification of the right to have counsel present at the clemency hearing.

Clemency 3-0 15-0 Read More

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8. Insert summary of task force recommendation here.

Subject to the special rule specified in 1(a) below, if evidence of the sort customarily subject to testing in a laboratory in a death penalty case is not originally reviewed by an accredited lab, then the defendant has the right to have the evidence reviewed a second time by an accredited lab. More specifically, any prosecution evidence that has not been tested in an accredited lab shall be retested in an accredited lab, at the request of the defendant and at the state’s expense. If such a request is made, there will be no reference to the first test (in a non-accredited lab) except as may be necessary to establish chain of custody. Defense forensic experts shall also be required, by Supreme Court Rule, to rely on testing by accredited labs, at the request of the prosecution, in death penalty cases.

a. The following rules will apply to death-penalty-eligible cases in which testing of evidence is performed under circumstances that will likely entail the total consumption or destruction of the evidence to be tested:

i. Where the testing is performed prior to indictment, the testing must be performed in the first instance by an accredited lab;

ii. Where the testing is performed subsequent to indictment, the testing must be performed by an accredited laboratory and the court to which the case is assigned must grant prior permission, with notice to the parties, for the test.

In the event the foregoing rules in this Section 1(a) are not observed, the results of the test shall be presumptively inadmissible, but the presumption may be overcome by good cause shown to the court to which the case is assigned, and if the court deems such evidence to be admissible, the court shall appropriately instruct the jury on the weight that it may choose to give that evidence. This recommendation does not apply to fingerprint evidence. “Accredited lab” means a lab that is accredited by any of the following: American Society of Crime Laboratory Accreditation Board (ASCLD/LAB); Forensic Quality Services, A.K.A. National Forensic Science Technology Center; or American Association for Laboratory Accreditation (AALA).

Law Enforcement 7-0 17-2 Read More

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9. Insert summary of task force recommendation here.

Require that each coroner’s office become accredited by the National Association of Medical Examiners (NAME), or have at least one person on staff or under contract who is a fellow of that organization (and who performs the procedure in the case), or have in place a contract with an accredited crime lab. Such a requirement would not require the coroner to refer all post mortems, and would preserve the coroner’s judgment as to which ones involved criminal activity. However, it would guarantee that the office either has successfully sought accreditation or has in place contracts with properly trained people to perform these kinds of specialized services when in the coroner’s judgment the need arises.

Law Enforcement 7-0 18-1 Read More

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10. Insert summary of task force recommendation here.

Any in custody interrogation, as defined by Miranda v. Arizona, shall be electronically recorded. If the interrogation is not electronically recorded, statements made during the interrogation are presumed involuntary.

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11. Insert summary of task force recommendation here.

The Supreme Court of Ohio by court rule should mandate that, prospectively, all death eligible homicides be reported to a central warehouse both at the charging stage and at the conclusion of the case at the trial level.

Disparity 4-0 15-1 Read More

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12. Insert summary of task force recommendation here.

Implementation of enhanced mandatory, educational and minimum experience and/or certification requirements for all participating legal counsel (appointed and retained) and all Ohio Judges (including Common Pleas, Appellate and Supreme Court) to allow for their participation in a Capital Case. The Ohio Judicial College could be utilized as the vehicle to implement the mandatory educational requirements for Judges. Certain minimum standards for the appointment and performance of legal counsel (appointed and retained) in Capital Cases should be set forth in the Rule and could, in exceptional circumstances, be waived, with the consent of the Ohio Supreme Court, if it is determined that the attorney’s ability or the Judge’s qualification otherwise exceeds the standards required by the Rule. (The adoption of this Rule would require some amendment or modification to Sup. R. 20.)

Judicial Role 5-0 21-0 Read More

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13. Insert summary of task force recommendation here.

Implementation of educational guidance for Presiding Judges as to when and how to intervene (procedure to follow) in situations of potential ineffective lawyering. Additional guidance should also be emphasized to assure effective utilization of the Recusal Process by Participating Legal Counsel, when incurring issues of preconceived opinions or otherwise prejudicial positions of Trial Judges. (Committee Note: For clarification, the educational guidance would highlight procedures for recognizing these issues in such a way that the Trial Court would not damage or undermine the client’s confidence in his or her legal counsel. However, the Committee also recognizes that if ineffective assistance of counsel is found, the Court has a duty to step in and address the issue.)

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14. Insert summary of task force recommendation here.

Adoption of an Order directing that a presiding Trial Judge, or the Administrative Judge, in conformity with Sup. R. 20, is the appropriate authority to appoint legal counsel in a Capital Case.

Judicial Role 5-0 14-5 Read More

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15. Insert summary of task force recommendation here.

It is specifically recommended that increased funding be provided to the Office of the Ohio Public Defender, by statute, to allow for additional hiring and training of qualified Capital Case defense attorneys, who could be made available to all Ohio counties, except in circumstances where a conflict of interest occurs, at which time a separate list of prospective appointed counsel would be provided.

Judicial Role 5-0 20-0 Read More

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16. Insert summary of task force recommendation here.

In addition, the Committee recommends that the Supreme Court should take the lead to adopt a uniform process for the selection of indigent counsel in Capital Cases, including the establishment of a uniform fee and expense schedule, all of which would be included in the proposed Criminal Rule for Capital Cases.

Judicial Role 5-0 20-0 Read More

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17. Insert summary of task force recommendation here.

In the event the Task Force would recommend the present process of appointment of indigent counsel by the Judiciary, the main objective should always be to assure the best educationally and experienced-qualified candidate, who is available (within the county or outside the county), and who is otherwise willing to take on the responsibilities associated with the case for an appropriate fee and accompanying expenses. A uniform fee schedule for such services across the State of Ohio must be a necessary consideration to assure the equal protection of enhanced due process for each County in the State.

Judicial Role 5-0 21-0 Read More

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18. Insert summary of task force recommendation here.

Embodiment of reporting standards to provide complete transparency of record, including requirements to ensure better record-keeping by the trial judge and the provision of additional, detailed resource information necessary to assure strict compliance with due process, which information shall be submitted to the Supreme Court upon completion of the case. Such resource information may include unique Constitutional issues, unique evidentiary issues, significant motions, plea rationale, pre-sentence investigation, and any additional information required by Rule 20 Committee or Supreme Court. Additional types of resource information could be developed as part of mandated educational process conducted by the Ohio Judicial College.

Judicial Role 5-0 16-0 Read More

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19. Insert summary of task force recommendation here.

Amend R.C. §2929.03 (F) to include the necessity for a Prosecutor’s rationale of a proposed plea agreement, on the record, for any indicted capital offense that results in a plea for a penalty less than death.

Judicial Role 5-0 15-1 Read More

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20. Insert summary of task force recommendation here.

Adoption of an order requiring implementation of mandatory pre-trial conferences and appropriate Judicial College education to emphasize the necessity for conducting such conferences, all of which must be on the record, to begin at the earliest stages of the case and to address issues pertaining to discovery, Brady disclosures, and appointment of experts. After inquiry by Court as to status of discovery, counsel for state and defendant shall be ordered to declare their compliance with all discovery obligations and the State shall affirmatively assert disclosure of all exculpatory matters pursuant to Brady.

Judicial Role 5-0 10-5 Read More

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21. Insert summary of task force recommendation here.

Adoption of an Order, in the case of a Pro Se Defendant who is competent to stand trial but may not be competent to represent himself or herself because of a mental health or developmental disability, directing either the appointment of counsel to conduct the Trial or to act as “stand-by counsel” or “co-counsel” to assist the Pro Se defendant, or to assume or resume to proceed with Trial as counsel of record, in the event Defendant changes mind about proceeding as a Pro Se litigant.

Note re: Indiana v. Edwards, 554 U.S. 164

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22. Insert summary of task force recommendation here.

Adoption of an Order directing the Trial Judge is the appropriate authority for the appointment of experts for indigent Defendants. The Order further provides that the decision pertaining to the appointment of experts shall be made, on the record, at one of the prescribed Pre-Trial Conferences.

If Defense counsel requests, the demand for appointment of the expert shall be made in-camera ex parte, and the Order concerning the appointment shall be under seal.

Upon establishing counsels’ respective compliance with discovery obligations, the question of the appointment of experts (including determination of projected expert fees based upon analyses of expert’s time to be applied to the case as well as consideration of incremental payment of expert fees as case progresses) would be decided by the Court, which decision would be subject to immediate appeal, under seal, to the appropriate Court of Appeals. The trial court judge shall make written findings as to the basis for any denial. Although concerns have been raised as to the ability of the Appellate Court to provide the anticipated, necessary expedited hearing within a reasonable time-frame, the Committee suggests that this issue be elevated to the status of Final Appealable Order and that the necessary expedited appellate process be spelled out in the Statute.

Judicial Role 5-0 13-5 Read More

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23. Insert summary of task force recommendation here.

Adoption of a separate Criminal Rule for Capital Cases that provides: (8) in the event the ABA guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases and the Supplementary Guidelines for the Mitigation Function of Defense Teams are adopted, in the entirety, it will be necessary to determine whether the ABA guidelines are merely guides for defense counsel to follow or to be applied as standards to be monitored and enforced by the trial court. In either event, the trial court in accord with Sup.R. 20.03, shall take appropriate steps, on the record, to monitor and/or enforce a checklist of guidelines. Due to the number of guidelines, their complexity, issue pertaining to attorney-client privilege and the propriety of court inquiry, the degree of monitoring and/or enforcement and the manner of proceeding must be addresses by the Supreme Court of Ohio and the Ohio Judicial College in the Capital Crimes seminar.

Judicial Role 5-0 16-0 Read More

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24. Insert summary of task force recommendation here.

That the time frame for filing a post-conviction motion be extended from one hundred eighty (180) days after the filing of the trial record to three hundred sixty five (365) after the filing of the trial record. Section 2953.21(A)(1)(c)(2) would read as follows:

Except as otherwise provided in section 2953.23 of Revised Code, a petition under division (A)(1) of this section shall be filed no later than three hundred
sixty-five (365) days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or
adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court. If no appeal is taken,
except as otherwise provided in section 2953.23 of the Revised Code, the petition shall be filed no later than three hundred sixty five (365) days after
the expiration of the time for filing the appeal.

Post-Conviction 7-0 17-0 Read More

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25. Insert summary of task force recommendation here.

Rule 20 of the Rules of Superintendence for the Courts of Ohio be modified, adding Section (E). Section (E) would read as follows:

(E) Post-Conviction Counsel. Post-conviction counsel shall satisfy all of the following qualifications:

1. Be admitted to the practice of law in Ohio or admitted to practice Pro Hac Vice;
2. Have at least three years of civil or criminal litigation or post-conviction experience in Ohio;
3. Have specialized training, as approved by the committee, on subjects that will assist counsel in the post-conviction of cases in which the death penalty was imposed in the two years prior to making the application;
4. Have experience as counsel in the post-conviction of at least three felony convictions in the seven years prior to making the applications.

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26. Insert summary of task force recommendation here.

The Judge hearing the case must state specifically why each claim was either denied or granted in the findings of fact and conclusions of law.

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27. Insert summary of task force recommendation here.

The common pleas clerk shall retain a cop[y of the original trial file in the common pleas clerk’s office even though it sends the originals to the Supreme Court of Ohio in connection with the direct appeal.

Post-Conviction 5-0 19-0 Read More

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28. Insert summary of task force recommendation here.

There shall be no page limits in death penalty cases in either the petition filed with the common pleas court or on direct appeal from the denials of such petition.

Post-Conviction 5-0 14-3 Read More

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29. Insert summary of task force recommendation here.

The Ohio Judicial Conference shall study the Ohio Jury Instructions to make clear that a jury must always be given the option of extending mercy that arises from the evidence as cited in Justice Scalia’s dissent in Morgan v. Illinois, 504 U.S. 719, 751 citing Woodson v. North Carolina, 428 U.S. 303-305

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30. Insert summary of task force recommendation here.

Amend R.C. 2953.21, as attached in Exhibit B, to these recommendation to provide for depositions and subpoenas during discovery in post-conviction relief.

Post-Conviction 13-3 Read More

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31. Insert summary of task force recommendation here.

Adopt the 2003 American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in death penalty cases.

5-0 12-2 Read More

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32. Insert summary of task force recommendation here.

Adopt the Supplementary Guidelines for the Mitigation Function of Defense Teams in death penalty cases.

5-0 13-4 Read More

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33. Insert summary of task force recommendation here.

Enact legislation to consider and exclude from eligibility for the death penalty defendants who suffered from “serious mental Illness,” as defined by the legislature at the time of the crime.

Appropriate questions for the legislature to consider include:

• Whether “serious mental illness,” is causally related to the crime?
• Whether the determination of “serious mental illness,” should be considered before trial or at some time as determined by the legislature?
• Whether the issue is already adequately addressed by the current law?

5-0 15-2 Read More

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34. Insert summary of task force recommendation here.

Enact legislation to provide that private defense counsel appointed to represent death eligible defendants or those sentenced to death are equally paid throughout the state regardless of the location of the offense.

5-0 16-0 Read More

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35. Insert summary of task force recommendation here.

Enact legislation to require all crime labs in Ohio must be certified by a recognized agency as defined by the Ohio legislature.

5-0 10-6 Read More

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36. Insert summary of task force recommendation here.

To ensure a more representative jury pool, enact legislation that requires every jurisdiction to create jury pools from voter lists of all registered voters and all licensed drivers who are US citizens rather than only the voter registration list.

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37. Insert summary of task force recommendation here.

Ohio legislature and Ohio Supreme Court implement and fund a state-wide public defender system for representation of indigent persons in all capital cases for trials, appeals, post-conviction and clemency except where a conflict of interest arises; in cases of conflicts of interest, qualified Rule 20 counsel shall then be appointed.

4-0 13-3 Read More

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38. Insert summary of task force recommendation here.

The Ohio Judicial Conference shall, on an annual basis, work with attorneys and judges, to review and revise as necessary the jury instructions in death penalty cases to ensure that jurors understand applicable law. In particular, the OJC shall request, on an annual basis, input from the Ohio Prosecuting Attorney’s Association, the Ohio Association of Criminal Defense Lawyers, the Ohio Public Defender, and the members of the Ohio Judicial Conference.

4-0 16-0 Read More

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39. Insert summary of task force recommendation here.

The Ohio Judicial Conference shall review and revise as necessary the Ohio Jury Instructions to institute the use of “plain English,” and “plain English,” shall be used throughout capital trials.

4-0 14-1-1 Read More

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40. Insert summary of task force recommendation here.

In capital cases, jurors shall receive written copies of “court instructions” (the judge’s entire oral charge) to consult while the court is instructing them and while conducting deliberations.

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41. Insert summary of task force recommendation here.

Enact legislation to exclude from eligibility from the death penalty defendants who suffer from “serious mental illness,” at the time of execution.

5-0 12-7 Read More

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42. Insert summary of task force recommendation here.

Enact legislation or administrative regulation to provide that death penalty clemency proceedings in Ohio include:

a. The parole board hearing must be recorded by audio, video or court stenographer and be a public record;
b. The interview of the condemned inmate must be recorded by audio, video or court stenographer and be a public record;
c. The inmate’s counsel must be allowed to counsel the client in the interview;
d. The parole board must reveal to counsel for the defendant and the state all documents, witnesses and information it will consider in reaching its decision;
e. The inmate’s master file must be released to his/her counsel at least six months before the parole board hearing;
f. Counsel for inmate and state must disclose and exchange all information to be relied upon at the parole hearing at least 30 days before the hearing with attorney certification and a continuing duty to disclose;
g. Identify a funding mechanism, such as a capital litigation fund, for inmate’s mental health expert of state expert so that an expert can be hired in a timely manner for the parole board hearing;
h. The legislature should ensure adequate funding, such as capital litigation fund, for private counsel who prepare for and represent a condemned inmate at the parole board hearing;

4-0 a. 17-1
b. 16-2
c. 11-8
d. 18-1
e. 18-0
f. 18-0
g. 12-2
h. 11-1
i. 18-0
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43. Insert summary of task force recommendation here.

Require annual mandatory training for all parole board members for a minimum of six hours by mental health and forensic experts and by others relevant to death penalty issues.

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44. Insert summary of task force recommendation here.

Enact legislation that does not permit a death sentence where the state relies solely on jailhouse informant testimony that is not independently corroborated at the guilt/innocence phase.

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45. Insert summary of task force recommendation here.

Enact legislation that will require a prosecutor to present to the Grand Jury available exculpatory evidence of which the prosecutor is aware.

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46. Insert summary of task force recommendation here.

The legislature should study how best to support families of murder/homicide victims in the short and long term.

4-0 10-9 Read More

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47. Insert summary of task force recommendation here.

Amend Sup.R. 20 in the manner attached hereto as Exhibit A.

3-0-1 18-0 Read More

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48. Insert summary of task force recommendation here.

Enact legislation to require prospective proportionality review in death penalty cases to include cases where the death penalty was charged in the indictment or information but not imposed.

10-7 Read More

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49. Insert summary of task force recommendation here.

Enact legislation that allows a defendant to withdraw his or her wavier of a jury trial in either the guilt or penalty phase if either phase is reversed by a reviewing court.

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50. Insert summary of task force recommendation here.

Enact and fund a capital litigation fund to pay for all costs, fees, and expenses.

19-0 Read More

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51. Insert summary of task force recommendation here.

The Ohio Rules of Practice and Procedure shall be amended so that the properly presented motion must be accepted for filing for a ruling by the court in a death penalty case.

18-0 Read More

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52. Insert summary of task force recommendation here.

Enact a court rule that shall allow prosecutors and defendant’s attorneys in death penalty cases full and complete access to all documents, statements, writings, photographs, recordings, evidence, reports or any other file materials in possession of the state, any agent or agency of the state, or any police agency involved in a case, or in the possession of the defendant’s attorneys which is known to exist or which, with due diligence, can be determined to exist and to allow the attorneys to inspect, test, examine, photograph or copy the same. This shall not be construed to require the disclosure of attorney work product or privileged matters, not to the disclosure of inculpatory information possessed by the defendant’s attorneys described in Crim.R. 16(H)(3), nor to materials protected by Crim.R. 16.

17-0 Read More

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53. Insert summary of task force recommendation here.

Enact legislation that maintains that a death sentence cannot be considered or imposed unless the state has either: 1) biological evidence or DNA evidence that links the defendant to the act of murder; 2) a videotaped, voluntary interrogation and confession of the defendant to the murder, or 3) a video recording that conclusively links the defendant to the murder; or 4) other like factors as determined by the General Assembly.

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