ON THE BENCH: Ohio Supreme Court Justices Judith French (far left) and Sharon Kennedy (second from right), here listening to oral arguments in September, were facing re-election when they issued an opinion last year upholding the death sentence for cop killer Ashford Thompson. REUTERS/Jay LaPrete

Uneven Justice

In states with elected high court judges, a harder line on capital punishment

Justices chosen by voters reverse death penalties at less than half the rate of those who are appointed, a Reuters analysis finds, suggesting that politics play a part in appeals. Now, the U.S. Supreme Court is about to decide whether to take up the issue in the case of a Ohio cop killer.

SAFETY NET: Justice Judith French has described the Ohio Supreme Court as a “backstop” for laws passed in the state’s Republican-dominated legislature. REUTERS/Jay LaPrete
COP KILLER: In the middle of an election campaign, the Ohio Supreme Court voted 4-3 to uphold the death sentence of Ashford Thompson, here in a July 2008 police photo, for the shooting death of Twinsburg, Ohio, police officer Joshua Miktarian. REUTERS/Summit County Sheriff Office/Handout via Reuters

SAN FRANCISCO - When Ohio’s Supreme Court last October backed the death penalty for Ashford Thompson, the ruling was close. Three of the seven justices felt that Thompson, convicted of killing a cop during a traffic stop, should have received life without parole. One called the shooting a tragic misunderstanding.

Two of the four judges who voted to uphold the death penalty were also in the middle of an election campaign to keep their seats. The same month the ruling was published, television ads lauded one of them, Justice Judith French, for one of her previous votes in favor of death.

Ohio is one of the states where high court judges are directly elected – and that, a Reuters analysis found, makes a big difference in death penalty appeals.

A review of 2,102 state supreme court rulings on death penalty appeals from the 37 states that heard such cases over the past 15 years found a strong correlation between the results in those cases and the way each state chooses its justices. In the 15 states where high court judges are directly elected, justices rejected the death sentence in 11 percent of appeals, less than half the 26 percent reversal rate in the seven states where justices are appointed.

Justices who are initially appointed but then must appear on the ballot in “retention” elections fell in the middle, reversing 15 percent of death penalty decisions in those 15 states, according to opinions retrieved from online legal research service Westlaw, a unit of Thomson Reuters.

Some academic studies over the past 20 years have mirrored the Reuters analysis, showing a relationship between the result in death penalty appeals and how state supreme courts are selected. The U.S. Supreme Court has not addressed these findings in its rulings.

Now, however, at least three current justices are sympathetic to the idea that political pressure on judges is a factor that leads to arbitrary, and perhaps unconstitutional, application of the death penalty.

The findings, several legal experts said, support the argument that the death penalty is arbitrary and unconstitutional because politics – in addition to the facts – influence the outcome of an appeal.

Courts have a responsibility to protect a defendant’s constitutional rights without political pressure, especially when the person’s life is at stake, said Stephen Bright, a Yale Law School lecturer who has worked on hundreds of death defenses. “It’s the difference between the rule of law and the rule of the mob,” Bright said.

In an interview, French said she and her colleagues cast their votes months before the Thompson opinion was published.

Justice Sharon Kennedy, the other Ohio Supreme Court judge running for re-election last year, said facing voters helps ensure that judges apply the law regardless of personal views on the death penalty.

“If you’re not answerable to the people, you have a wider slide to become what I would call an activist,” she said.

State supreme courts automatically review every death penalty verdict.  Apart from examining whether any legal errors were made, judges must also weigh different factors to decide whether the death sentence is an appropriate punishment. Was it the defendant’s first offense or do they have a history of violent behavior? When a death sentence is reversed, the offender usually gets life in prison instead.

But as the Reuters analysis suggests, external factors may come into play. The election effect was a far stronger variable in determining outcomes of death penalty cases than state politics and even race.

Justices in states that supported Democratic President Barack Obama in the 2012 election reversed death sentences at roughly the same rate as those that went for Republican candidate Mitt Romney, at around 14 percent.

African-American defendants had lower reversal rates in both elected and appointed states. Nationally, death sentences were reversed 15 percent of the time for whites, compared with 12 percent for African-Americans, according to the Reuters findings.

Reuters did not analyze the possible impact of the race of the victim on death penalty appeals. The analysis also excluded a category of death penalty appeals known as habeas challenges, because state supreme courts are not required to hear them and overwhelmingly refuse to do so.

Thompson’s attorneys are asking the U.S. Supreme Court to take up the case and throw out the Ohio ruling, arguing that prosecutors improperly dismissed a potential African-American juror. They also argue that it was “basically impossible” for French to vote against capital punishment while she was being praised during her election campaign for supporting death sentences.

Ohio prosecutors say Thompson only complained about political influence after he lost.

The Supreme Court is scheduled to review Thompson’s appeal at the end of September. His arguments could meet a difficult audience.

A SKEPTICAL COURT

The U.S. Supreme Court suspended the death penalty in 1972, finding that the punishment was often applied arbitrarily. After several states rewrote their laws to codify specific guidelines that could lead to death, like a violent criminal history, the Supreme Court in 1976 found those approaches constitutional.

Since then, majorities on the high court have taken a skeptical view of data used to argue that the death penalty is applied arbitrarily. In 1987, for instance, the court voted 5-4 that an academic study that showed a “racially disproportionate impact” of capital punishment in Georgia wasn’t enough to overturn a death sentence there.

In 2013, however, Justice Sonia Sotomayor cited a study showing that Alabama judges are more likely to impose the death penalty in election years, part of a failed effort to persuade her colleagues to review an Alabama capital case.

Last June, in Glossip vs. Gross, the high court voted 5-4 that the method of execution in Oklahoma is constitutional. In dissent, Justices Stephen Breyer and Ruth Bader Ginsburg cited studies showing capital punishment is arbitrary because of racial bias, as well as political pressure, “including pressures on judges who must stand for election."

Retired U.S. Supreme Court Justice John Paul Stevens, who has said he believes the death penalty to be unconstitutional, said in an interview that the Reuters findings “definitely lend support” to his side of the debate because they show how arbitrary capital punishment can be.

DIVIDED COURT: U.S. Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer (from left) have argued against the death penalty, citing, among other things, the pressure elections put on judges. Justices Clarence Thomas and Antonin Scalia consistently argue that the death penalty is constitutional. REUTERS/Jim Young, Larry Downing, Jonathan Ernst/Files

Yet in the Glossip case, Justice Clarence Thomas wrote that arbitrariness was “an imaginary constitutional rule.” And Justice Antonin Scalia wrote that Breyer and Ginsburg cited “abolitionist” academic studies “as though they have discovered the lost folios of Shakespeare,” despite the fact that the death penalty is clearly constitutional.

Beyond the Supreme Court, capital punishment is under attack in several states. Among the 31 states that have the death penalty, the punishment is on hold in at least nine due to legal challenges, according to the Death Penalty Information Center. (The 37 states in the Reuters analysis included seven that abolished the death penalty during the 15-year period covered; Montana did not have any direct appeals during the period, according to Westlaw.)

In Nebraska earlier this year, conservatives joined progressives to secure its repeal, calling it inefficient, costly and morally wrong. The Connecticut Supreme Court recently declared the punishment unconstitutional, citing a determination by the state legislature that it is arbitrarily applied.

But other death penalty states are holding fast where public opinion favors it as a valuable law enforcement tool. Ohio, which had an 8.7 percent reversal rate in the Reuters analysis, has scheduled 11 executions for 2016. Ohio prison officials, citing “victim sensitivity” and other issues, denied a request to interview Thompson, who could have years of court appeals ahead of him.

In California, where Supreme Court justices run in retention elections, fifty-six percent of voters support the death penalty, a 2014 Field Poll showed. The court reversed 4.6 percent of death penalties in the Reuters analysis.

In South Carolina, where justices never appear on the ballot, the state Supreme Court reversed death sentences 20.7 percent of the time. Justice Costa Pleicones, a former defense lawyer who has voted to reverse several death sentences, said judges’ capital punishment voting records never come up in the legislature. “We don’t really fear public outcry or reaction,” he said.

LETHAL FORCE: Officer Joshua Miktarian, here with his police dog Bagio, was shot dead by Ashford Thompson during a traffic stop in Thompson’s driveway. REUTERS/Twinsburg Police Department/Handout via Reuters

“There are men all over the U.S. who are going to die because of politics.”

Tim Young, director, Office of the Ohio Public Defender

In 1996, Tennessee Supreme Court Justice Penny J. White became the first and only Tennessee appellate judge to lose a retention election. The Tennessee Conservative Union and the Republican Party put out ads urging voters to support capital punishment by removing her.

White, now a professor at the University of Tennessee College of Law, said people she knew refused to look at her or shake her hand during the campaign. After the election, then-Tennessee Gov. Don Sundquist said: "Should a judge look over his shoulder about whether they're going to be thrown out of office? I hope so."

Last year, three Tennessee justices faced an organized campaign to oust them from the court. In campaign ads, a Tennessee group backed by the pro-business Republican State Leadership Committee called the court “liberal on crime,” citing a death sentence it reversed.

The justices fought back with a television ad reminding voters that the bench “affirmed nearly 90 percent” of death sentences, a statistic which matches the Reuters data. In an interview, Justice Gary Wade said his campaign conducted polling showing that more than 70 percent of Tennessee voters supported capital punishment.

“Those who were employed to run the campaign believed that it was important for this court to have a demonstrated record, or willingness, to impose the death penalty,” said Wade.

Wade and the two other Tennessee judges kept their seats. Wade retired in early September.

The RSLC, which backs Republican candidates for state office, chooses which judicial elections to get involved in based on “which ones we have an opportunity to flip a court to Republican, or to help maintain a Republican majority on a court,” said Matt Walter, the group’s president.

DEADLY ENCOUNTER

In the Ohio case that the U.S. Supreme Court will decide whether to review in late September, there is no doubt that Ashford Thompson is a cop killer.

A little after midnight on July 13, 2008, Thompson and his girlfriend, Danielle Roberson, went for a drink at the Rav’s Creekside Tap & Grill in Twinsburg, Ohio. The bartender served him a single Budweiser draft.

A witness who had been at the bar testified that he heard Thompson make angry comments including, “I will kill any one f***r that threatens me,” and, “There’s demons in me.”

At about 1:55 a.m, Twinsburg police officer Joshua Miktarian called dispatch to report a traffic stop. Thompson had pulled into his driveway, and Miktarian pulled in behind him, according to Roberson. It’s not clear why the officer stopped Thompson, but a witness testified that Thompson’s car was playing loud music.

According to Roberson’s testimony, Miktarian asked Thompson: “[W]hy are you running through my city with all that boom, boom, boom. I ought to rip all this s*** out of your car.” Miktarian said he had been following Thompson for two and a half miles and asked Thompson why he had not stopped, and whether he had been drinking.

According to Roberson’s testimony, the officer “slammed” Thompson onto the hood of the cruiser and reached for his belt. Roberson said she then saw Thompson, who had a license to carry a concealed firearm, turn and shoot Miktarian.

When other officers arrived at the scene, they found Miktarian dead, with four gunshot wounds to the head. Thompson was arrested less than half an hour later, the handcuffs marked with Miktarian’s badge number still hanging off his right wrist.

After a five-day trial, a jury convicted Thompson of aggravated murder, escape, resisting arrest, tampering with evidence and carrying a concealed weapon. He was sentenced to death.

The Ohio Supreme Court heard Thompson’s appeal on April 8, 2014, and French was chosen to write the majority opinion affirming the death sentence.

As she was writing, French was in the midst of a hard-fought campaign to keep her seat on the bench. In her campaign literature, French used the tagline “Judge Judi” and touted her conservative credentials.

Introducing Ohio Gov. John Kasich at a campaign event, French described the Ohio Supreme Court as a “backstop” for laws passed in the Republican-dominated legislature. None of the votes, for governor, for state senator, would matter if the Ohio Supreme Court didn’t stay conservative, she said. “We are the ones that will decide whether it is constitutional,” she said.

That month, American Freedom Builders, a Washington-based nonprofit that advocates for small government, bought about $600,000 in ads for French, according to the Brennan Center for Justice at New York University School of Law. An ad reminded voters that French is “tough” and upheld a death sentence “for a murderer who shot his girlfriend in front of her three year old daughter.”

In the opinion on Thompson’s appeal, French wrote that the death penalty was appropriate compared to similar cases. “We have previously upheld death sentences for killing a law-enforcement officer who is engaged in official duties,” she wrote.

One of three dissenting judges, William O’Neill, wrote that the evidence depicted a routine traffic stop gone tragically wrong.  He said the majority did not seriously take mitigating factors into account: Thompson went to college, was a licensed practical nurse with a steady job who was involved in his community and church, and was a law-abiding citizen. He carried a concealed weapon, O’Neill wrote, for his own protection because he often treated patients who lived in dangerous neighborhoods.

“The majority’s failure to seriously engage in the weighing process provides yet another reason why, in my opinion, Ohio’s system of imposing and reviewing death sentences is unconstitutional,” he wrote.

Thompson’s attorney said the problem is broader. “There are men all over the U.S. who are going to die because of politics. That’s a basic component of the death penalty,” said Tim Young, director of the Office of the Ohio Public Defender.

The opinion in Thompson’s case was issued on Oct. 29, 2014.  Six days later, French was re-elected with 56 percent of the vote, and Kennedy with 73 percent of the vote.

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By Dan Levine and Kristina Cooke

Graphics: Christine Chan

Data: Lynn Starkman and Angela Haukebo

Photo editing: Jim Bourg

Design: Catherine Tai

Edited by Amy Stevens and John Blanton