RE-EXAMINING LUCASVILLE: ESSAY 6
By Staughton Lynd
Let’s try to visualize
the most unfair criminal trial we can imagine.
Let’s make a
list of elements that might be part of such an unjust proceeding.
The list might include the following elements.
1. The judge excuses one potential jury member
after another who states that he
or she could not in good conscience recommend the death penalty.
2. The evidence in support of convicting the defendant
consists entirely of
testimony by other prisoners.
Each of these elements was present in the trial of
George Skatzes, who was found
guilty and sentenced to death for the aggravated murder of prisoners
Earl Elder and
David Sommers. In addition, in
the portion of the trial concerning Mr. Elder’s death:
3. Skatzes was sentenced to death for allegedly
ordering prisoner Rodger
Snodgrass
to murder Earl Elder. But Snodgrass, a
prosecution witness, testified that
Elder
was still alive when he left Elder’s cell.
4. The medical examiner testified that Elder’s fatal
wounds were caused by a
broad blade. However, Snodgrass
himself as well as another prosecution witness, Tim
Williams, testified that the weapon supposedly carried by Snodgrass was
a thin, icepick-
like shank that made small, round holes.
5. Tim Williams was himself named by two other
prisoners as one of the three men who actually killed Elder. Williams is now on the street.
6. Another
prisoner, Eric Girdy, has confessed to being one of those three men.
Girdy has repeatedly stated under oath that Skatzes was
nowhere around at the time and
had nothing to do with what happened.
7.
Girdy testified that the weapon he used was a piece of broken glass from
an
officers’ restroom.
The medical examiner testified that he found a shard of glass in one
of the potentially lethal wounds made by a broad blade.
8.
Girdy’s belated confession was accepted as true by the special
prosecutor
and Girdy was duly sentenced in the Scioto County Court of
Common Pleas.
In the portion of the trial concerning the murder of
David Sommers:
9. Several
weeks after Skatzes was convicted and sentenced to death for
Sommers’ homicide, prisoner Aaron Jefferson, in a separate trial, was
found guilty of
allegedly committing the same murder.
10. As in the trial of Skatzes, when Jefferson
was tried for killing Sommers the medical examiner testified once again that
Sommers had died as the result of a single, fatal blow by an instrument like a
baseball bat. Thus two men were found
guilty of striking the same lethal blow.
11. An Ohio Court of Appeals determined that
there was no way to prove which man had struck the fatal blow, but Skatzes was
guilty anyway because of his “complicity” in the murder and his sentence of
death should be affirmed.
Nothing has been done to vacate George
Skatzes’ death sentence for the
aggravated murders of Elder and Sommers.
What Skatzes Says
George
Skatzes has written a statement from which the following are excerpts:
Twenty eight years and
counting! I am totally at my wits’
end! Please let me explain! Please hear me out!
The
testimony by the inmates in the Earl Elder murder was contradicted and
undermined by the testimony of the forensic pathologist. Yet all this means nothing to the
courts! George Skatzes was found guilty
and that is that! Justice?
Ohio
Jury Instructions 409.56, Other Causes, Intervening Causes, states: “If the defendant inflicted an injury not
likely to produce death, and if the sole and only cause of death was a fatal
injury inflicted by another person, the defendant who inflicted the original
injury is not responsible for the death.”
[George adds: There is nothing
true about Snodgrass’ testimony. But if,
for the sake of argument, we assumed that Snodgrass was telling the truth,
since Snodgrass said Elder was alive when Snodgrass left his cell, under Jury
Instruction 409.56 Skatzes could only have been guilty of attempted murder.]
In
the case of David Sommers, there is no physical evidence to link George Skatzes
to the crime. The inmates who testified
against George Skatzes are self-admitted participants in the murder!
We
have two people convicted for causing the death of David Sommers by dealing a
single massive blow to the head. Two
people convicted for the very same act?
The object is, of course, to convict at any cost!
Summing up his trial and convictions, Skatzes declares:
We have a man convicted and sentenced to death only
on the word of jailhouse snitches. It
was their word alone without any independent objective and corroborating
evidence.
Law Versus
Justice
In three
aspects of the courts’ proceedings concerning Mr. Skatzes and others of
the Lucasville Five, prosecutors have been able to cite and
rely on the law as pronounced
by state and federal courts.
But that doesn’t mean that these convictions and sentencse
are just! It only
means that Skatzes, like other Lucasville defendants, is a victim of what
he calls “the criminal injustice system.”
Let’s
consider three of the judicial doctrines that stand between Lucasville
defendants and light at the end of the tunnel.
The Death Qualified Jury
A jury’s recommendation of the death
penalty must be unanimous. It takes only
one juror in
twelve to prevent a recommendation for death.
But under current law in state and
federal courts, any potential juror who states
that he or she
opposes the death penalty under all circumstances will almost surely be
“excused,” that
is, excluded, from jury service in a capital case.
In contrast, a juror who indicates
support for the death penalty is asked another
question, namely,
Would you follow the instructions of the judge about the law? If the
juror answers,
Yes, then that juror may be seated even though he or she favors the
death
penalty just as
strongly as opponents of the death penalty oppose it.
The following extracts show the
doctrine of the “death qualified jury” at
work during the “voir dire” (jury selection
process) in the case of George Skatzes.
Juror
#1
THE
COURT: . . . I have a question I want to ask you. . . . [I]n a proper case
where the facts warrant it and the law permits it, could you join in with
others in signing a verdict form which might recommend to the Court the
imposition of the death penalty?
A: No, sir.
THE
COURT: You don’t believe you could do
so?
A: I don’t believe so.
THE
COURT: Under any circumstances?
A: No.
THE
COURT: Could you tell me why?
A: I had a brother who was murdered and I found
it in my heart to forgive that man. I
would not have found him guilty to the extent that his life would be taken.
THE
COURT: In other words, you feel that if
you didn’t do it in your brother’s case, you wouldn’t do it in any other case,
right?
A:
Right. . . .
[DEFENSE
ATTORNEY]: . . . Do you feel that this is a teaching of your church?
A: Not so much a teaching of my church as it is
an understanding of mine that I do not create life. I am not giver of life, so I feel that it’s
not my responsibility or within reason to expect me to take a life. . . .
THE COURT: You may step down.
Juror
#8
THE
COURT: . . . In a proper case, where the
facts warrant it and the law permits it, could you join in with the other
jurors in signing a verdict form which would recommend to the Court the death
penalty?
A:
Yes, your Honor.
[PROSECUTING
ATTORNEY]: . . . We brought you here
because we want to discuss with you your views on capital punishment. Can you share them with us, please?
A: I strongly believe in them. I wish they were enforced more often.
[PROSECUTING
ATTORNEY]: . . . Do you believe the
death penalty is the only appropriate penalty in all cases of an intentional
killing?
A: Pretty much.
[PROSECUTING
ATTORNEY]: Does that mean?
A: Yes.
[PROSECUTING
ATTORNEY]: . . . You can think of the
wors[t] crime that comes to your mind and if you find that person guilty at the
first phase, we don’t go straight to death.
We have the second hearing at which point you would get additional
evidence to consider in making your decision as to what punishment is
appropriate. . . .
What
we need to know is whether you could set aside your thoughts as to what you
think the law should be and follow the law that the Judge gives you?
A: Yes.
[PROSECUTING
ATTORNEY]: If you found someone guilty
of a horrible, horrible crime, as bad as you can think of, would you be willing
to keep an open mind and listen to the evidence at the second phase before
making a decision as to which penalty is appropriate?
A: Yes.
[PROSECUTING
ATTORNEY]: No matter how bad the crime?
A: Yes.
. .
.
THE
COURT: . . . We want you back [to serve
as a juror in the case].
With the doctrine of the
death-qualified jury before us, there should be no
difficulty in understanding why, in such a high percentage
of cases, Lucasville
prosecutors either won a favorable jury decision or entered
into a favorable plea
agreement. At one
public forum concerning George Skatzes, known to fellow prisoners
as “Big George,” an attender who had read the dialogue
between the judge and potential
jurors
commented: “Big George is in Big
Trouble.”
Studies cited by the American Bar
Association and the American Law Institute
indicate that the process of selecting a
death-qualified jury produces juries that are more
likely to convict the defendant during the guilt
phase of the trial, and more likely to
impose the death penalty during the sentencing
phase. John Paul Stevens, retired
Justice
of the United States Supreme Court, stated when he
was on the bench that this rule
“deprive[s] the defendant of a trial by jurors
representing a fair cross-section of the
community.” He
is convinced that “the process of obtaining a ‘death qualified jury’ is
really a procedure that has the purpose and effect of
obtaining a jury that is biased in
favor of conviction.”
The Doctrine of Complicity
A familiar
hypothetical presents the problem of a group of bank robbers.
Robber A is
the driver of the getaway car. While his
companions enter the bank,
he stays at the wheel of their vehicle, perhaps listening to
the car radio or reading the
newspaper. Meantime,
the men actually in the bank encounter difficulties, there is a
scuffle, robber B
uses his gun, and a bank teller falls to the floor, dead.
What should
be the punishment of robber A? Under
Ohio law he can be found to
be “complicit” in the entire criminal course of conduct, and
presumed to be just as guilty
as the man who pulled the trigger. Moreover, whereas under Ohio law someone
guilty of
“conspiracy” to rob the bank would not be eligible for the
death penalty, under the Ohio
law of “complicity” every one in the group would be exposed
to the possibility of
execution.
After Aaron Jefferson was convicted
of striking the same fatal blow for which
George Skatzes had been convicted, an Ohio Court of Appeals
considered the case.
The court began its explanation by stating: “Skatzes contends that his due process rights
were violated because the state charged and convicted two
inmates—Skatzes and Aaron
Jefferson—with the murder of David Sommers, when the
evidence suggested only one
fatal blow. He argues
that these [were] ‘inherently factually contradictory theories’.”
Not so, the
court continued. “The state’s theory was
that both Skatzes and
Jefferson were complicit in the crime; there was no way to
prove who had inflicted the
fatal head injury. . . .
A defendant charged with an offense may be convicted of that
offense upon proof that he was complicit in its
commission.”
The court may not have read the
transcript of the Skatzes and Jefferson trials.
In
closing argument in the Skatzes trial, Prosecutor Daniel
Hogan did not say, “there was no
way to prove who had inflicted the fatal head injury.” Rather, Hogan asked the jury to
think “about David Sommers, . . . the one where [Skatzes]
wielded a bat and literally beat
the brains out of this man’s head.” State v. Skatzes, p. 6108. And in the Jefferson trial,
Prosecutor Crowe told the jury:
If
there was only one blow to the head of David Sommers, the strongest evidence
you have [is that] this is the individual—I won’t call him a human—this is the
individual that administered that blow. . . .
If there was only one blow, he’s the one that gave it. He’s the one that hit him like a steer going
through the stockyard, the executioner with the pick axe, trying to put the
pick through the brain.
State v. Jefferson,
Tr. at 656-57.
The court also failed to mention that whereas Jefferson
was sentenced to many
years behind bars, Skatzes
was sentenced to death.
Jason Robb
was the victim of a prosecution theory about Sommers’ murder that
was equally bizarre. According to prosecution witnesses, Sommers
chased Robb from L-
2 to L-7, where Sommers was
beaten to death by prisoners other than Robb.
Yet Robb
was convicted and sentenced
to death for Sommers’ murder!
Ineffective Prohibition of Snitch Testimony
Heightened
reliability is required in capital cases.
Convictions based on the
testimony of
informants, who are offered reduced charges, parole, or other benefits
in
exchange for their testimony, are inherently unreliable in
the absence of independent and
objective corroborating evidence connecting the defendant to
the crime.
Defense Alternatives
Lucasville capital defendants were
faced with an excruciating choice.
If they had not
killed anyone during the eleven days, they had the right to go to
trial and try to convince a jury of
their innocence. But their juries would
be made up of
men and women willing to recommend
the death penalty; their trials would be governed
by the doctrine of complicity; and their trial court judges would have no
way to assure defendants of the good faith and credibility of prosecution
witnesses.
However if, recognizing that the
dice were loaded, the defendant elected to plea
bargain, the best possible outcome was likely to be
imprisonment for life.
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