Not that long ago, Dred Coleman would have been the perfect candidate for the death penalty in Franklin County. On Dec. 9, 2008, Coleman shot and killed Darryl Wood to silence his expected testimony in a drug case against Coleman's uncle. Coleman and an accomplice broke into Wood's east-side house to await his arrival and then chased him outside when he entered the home. The 43-year-old Wood-married with a son and also the brother of a Columbus police officer-was shot multiple times in his front yard on Argyle Drive on the east side as he begged for his life.
In the past dozen years alone, Franklin County Prosecutor Ron O'Brien had sought the death penalty in dozens of cases not all that dissimilar. But Coleman, now 26 and serving a life sentence with no chance of parole, never had to worry about capital punishment once he went to trial. Prosecutors didn't seek it.
Call it the death of the death sentence. In the past five years, capital punishment has virtually disappeared as a criminal justice tool in Franklin County. In 1991, the year that Ohio's death penalty law turned a decade old, the county indicted 22 people on death penalty charges, meaning they were accused of committing aggravated murder with an added element to their crime that made it so brutal that the punishment could include a death sentence. (Those elements were a murder committed during a rape, burglary or robbery, among other crimes.) As recently as 2004, Franklin County indicted 34 people on death penalty charges, the highest in the state that year.
Fast forward to last year, when prosecutors brought just one capital punishment case, charging Richard Fugate with the 1991 cold case slaying of Nancy Leslie at her north-side condo. Or this year, when through October only two county residents faced the possibility of a death sentence. The last time someone from Franklin County received a death sentence was 2003, when two men were sent to death row: James ConwayIII, who received a rare double death sentence for two unrelated killings in 2001 and 2002, and Robert Bethel, who shot and killed an 18-year-old man and his 14-year-old girlfriend in 1996 in a gang dispute. (Bethel actually had avoided the death penalty in a 2001 plea deal; then, when he backed out of the deal, his confession was used against him at trial.) "Jurors just don't want to give death sentences in Franklin County," says veteran defense attorney Diane Menashe.
Make no mistake: Franklin County is not alone. The number of capital punishment cases has been plummeting in the state for several years, and with that the number of death sentences. Nationally, death sentences are at a historic low, with 110 in 2009 and 114 last year, the lowest figures since the U.S. Supreme Court reinstated capital punishment in 1976.
Changes in sentencing laws, evolving public opinion and a drop in crime all are driving the same trend in Franklin County, with an added twist: O'Brien-a Republican, a strong supporter of the death penalty and a no-nonsense law enforcement official-has reversed course when it comes to deciding who will face a death penalty charge.
O'Brien, who grew up in Columbus and earned his law degree at Ohio State, has won eight Franklin County elections: Columbus city prosecutor in 1978, three times as city attorney and four times as county prosecutor (beginning in 1996). Should O'Brien run and win re-election in 2012 and fulfill his term, he'll become the longest-serving prosecutor in county history, surpassing Ralph Bartlett, who held the office from 1937 until 1952.
He is rarely at a loss for words, but chooses them carefully, dipping sometimes into legalese. He makes his points directly, sometimes interrupting a question with more explanation to make sure he's been understood. He's tall and thin, with the lankiness developed by years of long distance running: At 62, he still competes regularly in half marathons. O'Brien is not prone to inflammatory statements about defendants, nor is he ready to criticize jurors who, as has happened often in Franklin County, decline to sentence someone to die. "It is probably the toughest thing a citizen does besides serve in time of war, to serve on a jury, and particularly a jury with the death penalty on the table," he says.
O'Brien's change in focus about the death penalty dates in large part to Jan. 6, 2005, the day that Bryan Hurst, an off-duty Columbus police officer on special duty, was shot to death by Daryl Lawrence during a robbery at Fifth Third Bank at 6265 E. Broad St. O'Brien opted to allow the federal government to charge Lawrence because of a difference in how the second phase of a death penalty case is handled by the federal courts. There, in contrast to Ohio law, jurors are allowed to hear victim impact statements from relatives of a slain individual as they weigh their decision. Such testimony is prohibited in state courts for fear it will unnecessarily inflame jurors' emotions. O'Brien's gamble worked: Lawrence was sentenced to death on March 10, 2006, and while his sentence was later overturned, a federal appeals court has since reinstated it.
In the past, O'Brien didn't hesitate to push for a capital indictment if some death penalty factor was present, such as a murder during a robbery. Only later in the case would he decide whether to go to trial with the death penalty or, in some instances, to use death as a bargaining chip to force a plea deal. In the federal system, however, a U.S. Justice Department panel weighs evidence from both sides before deciding whether a case is eligible for death. Convinced by the method, O'Brien decided to try this approach on Franklin County cases as well. "What we're trying to do is look at the cases up front more than we did in the past," he says.
Today, the Franklin County prosecutor's office looks at everything at the start, including factors that could cause a jury to show mercy, such as a defendant's age, criminal background, mental health and upbringing, along with the strength of the state's evidence. The goal, O'Brien says, is to "make a judgment whether or not it's a legitimate case we could present to the jury, ask for the death penalty and get it."
In some ways, Ohio law used to force the hand of O'Brien and other prosecutors when it came to deciding whether to seek the death penalty. That's because, from 1996 through 2005, juries had only two sentencing options in capital cases: death or life without parole, sometimes dubbed LWOP. The introduction of life without parole in 1996 quickly caught on with jurors, and it also was attractive to prosecutors because it gave them a tool in plea bargains: a still harsh punishment without worrying about the time and expense of a capital case. But you still had to start with the death penalty on the table to get to life without parole, and even the filing of capital charges triggers extra expenses and complications.
That all changed in 2005, when lawmakers passed a bill allowing prosecutors to seek LWOP without first charging someone with the possibility of a death sentence. The law was inspired by the 2000 killing of a 15-year-old boy in Milford in Clermont County whose killer pleaded guilty to avoid a death sentence and is now serving a sentence of 50 years to life with a chance of parole. The boy's mother pushed for the change to allow the stiffer non-death sentence. Though it sounds like a technical development, the impact of this 2005 legislation on death penalty cases, especially in Franklin County, can't be underestimated.
The new law benefited prosecutors who may have wanted the next-toughest penalty possible, but without the expense of a death penalty case. That cost includes investigators and experts for both sides, a more rigorous jury selection process, a longer trial and, of course, years of appeals. The difference is staggering. In Franklin County, fees for the two defense attorneys required in capital cases are a minimum of $25,000 apiece, compared to $5,000 for a single attorney in an aggravated murder case without the death penalty. The result: Ten capital indictments could cost the county half a million dollars just in defense costs, compared to about $50,000 for those same number of cases if the death penalty is not involved. Given those numbers, the chance to put someone in prison for life without the hoops of a capital punishment trial is enticing. "Once they have that card in their hand, why indict death?" says Menashe.
Take the case of Harry Woodbridge, arrested in May 2010 for attacking his former in-laws in their south-end home and then torching their house to cover up the crime. Charlene Horn died at the scene, while Arlie Horn died a short time later at Mount Carmel West Hospital. The crime met all the standard definitions of a death penalty case. But O'Brien says Woodbridge's mental health might have been an issue for jurors, plus the reality that, because of the lengthy appeals process, the chance that the 65-year-old Woodbridge would ever be executed was slim. After discussions with the Horns' family, "They thought that him serving a life sentence under those circumstances, a life without parole, was a better resolution than trying to seek a death penalty and have it in litigation for years thereafter," O'Brien says. The Horns' son declined a request to talk about the sentence.
In the case of Shana White, one of two people killed by Detroit drug dealer Robert Harris in 2006, life without parole was not enough for her family, at least at first. "I wanted the death penalty so bad because I was angry; it was eye for eye, that kind of anger," says White's mother, Gaynell Wicks of Canal Winchester. She simply couldn't believe how something so awful could have happened to her beautiful 32-year-old daughter, the mother of three girls who had just completed a master's degree. Wicks was so upset she had to be hospitalized for a time. But with almost three years between the killings and the trial, her feelings changed and she realized her anger was making her, as she puts it, spiritually bankrupt. She's satisfied now with the two life sentences Harris received, knowing he has to wake up every day and think about what he did. "You become consumed with hate and you're mad at the world and you just can't live like that," Wicks says.
After Ohio switched to the electric chair in 1897, 32 Franklin County prisoners died by electrocution, or about one in every 10 of the 315 total inmates executed. The Franklin County defendants included Donald Reinbolt, executed in 1963 for killing grocer Edgar Weaver, and the last person to die in Ohio's electric chair. He also was the last person executed in the state until Ohio resumed executions in 1999.
As those numbers suggest, it's always been a little tougher to get a death sentence in Franklin County than elsewhere. An analysis of the first two decades of capital indictments under Ohio's current law, from 1981 through 2002, found that just 5 percent of capital punishment cases in Franklin County ended with an actual death sentence. Compare that to conservative Hamilton County, which sentenced 43 percent of its death penalty defendants to die over the same time period. Defense attorneys long have contended that Franklin County's considerable white collar workforce, including large numbers of state government and Ohio State University employees, created jury pools more likely to opt for lesser sentences or, since 1996, life without parole. (In fact, research on the socioeconomic background of death penalty juries is scant. Studies have found that more ethnically diverse juries and jurors with higher education are less likely to vote for a death sentence, which is probably the case in Franklin County.)
Many defense attorneys believe jurors today are leaning even further from death sentences than in the past. "Jurors are just much more careful about the decisions they're making now," says lawyer Scott Weisman. "They realize that even when things look one way, it doesn't necessarily mean it happened that way."
These days, Weisman and his colleagues aren't exactly upset that clients no longer face the death penalty as often. But as they point out, there also is a downside for defendants because of the new law. That's because of the nature of a death penalty trial, which actually is divided into two parts to meet constitutional standards of fairness. The first phase is the classic trial, where evidence is presented and guilt or innocence determined: Did the defendant actually commit the crime according to the reasonable doubt standard? The second phase is a type of mini trial where the defense and prosecution present evidence for and against the possibility of a death sentence. For the defendant, this is the time to present mitigating facts-a lousy childhood, dependence on alcohol or drugs, the roles of other conspirators-that might sway a jury to choose life without parole instead of death. In a "normal" aggravated murder case, that mini trial doesn't happen, even though the defendant still faces the possibility of spending the rest of his life in prison. Defendants don't get the extra attorney they're entitled to in a capital case, or the chance to hire investigators and experts to make the case for a lesser sentence. "It's a little unfair you don't get to defend yourself fully," says Columbus defense attorney Kort Gatterdam, who has represented many death penalty clients in Central Ohio.
Franklin County is somewhat unique in having had just two prosecutors since state lawmakers reenacted the death penalty in 1981: Democrat Mike Miller, elected in 1980 and serving through 1996, and O'Brien, a Republican who has held the office since 1997. Miller, now a defense attorney who has opposed O'Brien's office in four capital cases, indicted dozens of death penalty cases as a prosecutor, including William Wickline, sentenced to die for the 1982 murder of Peggy Lerch and the first Franklin County resident executed under the new law, dying by injection in 2004. (Wickline also received a life sentence for killing Lerch's husband, Christopher Lerch.) Miller says he appreciates O'Brien's approach, but personally remains a strong supporter of the death penalty in certain cases. "There are some crimes that are so bad that the only semblance of justice to me is the death penalty," Miller says.
The case of Dred Coleman illustrates how things have changed in Franklin County in the past few years. His victim, Darryl Wood, was facing drug trafficking charges at the time of his killing. Wood had agreed to be a witness in the case against other defendants, one of whom was an uncle of Coleman, who was from Cleveland. The day of the murder, Coleman and another man, Ramon Blevins, also from Cleveland, broke into Wood's home and were in the basement waiting for him when he entered his house, along with Wood's uncle, shortly before 9 am. Wood shouted for his uncle to leave when he realized someone was inside. The uncle made it out and hid behind an SUV, where he saw his nephew emerge from the house chased by two men and then plead for his life on his front lawn before the last of several bullets were fired. Police quickly arrested Coleman and Blevins and once inside the house found a bedroom and the basement ransacked; they also discovered three bundles of marijuana in the basement.
Coleman and Blevins were released later the same day for lack of evidence, but kept under police surveillance. They were re-arrested the next day by members of the Columbus SWAT team. Blevins later agreed to cooperate, but prosecutors were frustrated with the statements he gave them over time, not convinced he was being entirely truthful, according to O'Brien. Coleman, meanwhile, was in jail on minor weapons and tampering with evidence charges. Eventually, he was indicted for aggravated murder in February 2009. O'Brien acknowledges that Coleman was eligible for the death penalty because the crime occurred during a burglary and it was a murder-for-hire case. But under his office's new philosophy, developed since the Daryl Lawrence case in federal court, O'Brien took another look at the state's evidence and decided that Blevins's conflicting statements were too problematic to push for a capital punishment trial.
Another reality O'Brien faced: Jurors in Franklin County, like those across the state, lean toward not voting for death as often when killings are connected to drug dealing, perhaps out of some sense that the victims weren't entirely "innocent." As Tim Young, the state public defender, puts it, jurors tend to relate more to a victim who wasn't engaged in any type of illegal activity (and also more willing to sentence his killer to death) "as compared to a victim who associated themselves with drug use and a potential criminal lifestyle."
Blevins ended up pleading guilty to murder; he received a sentence of 18 years to life and testified against Coleman at his trial last year. Coleman was convicted by a jury and sentenced to life without parole by Franklin County Common Pleas Judge Daniel Hogan, who called his crime "cold, calculated and premeditated."
Todd Barstow, one of Coleman's attorneys, says there's no doubt his client could have faced a death penalty, especially under the old system. But, he adds, "Ron plays things pretty straight; if he thought he had a death penalty, he would have done it."
In the end, putting Coleman away for life was good enough for Wood's family. "We just wanted justice," says his widow, Nikki Wood. "Basically, we would prefer the death penalty or life without parole. Life without parole to me is like a death penalty. You're never going to get out. To me, pretty much he is the walking dead."
Andrew Welsh-Huggins is a legal affairs reporter for the Associated Press in Columbus and the author of No Winners Here Tonight: Race, Politics and Geography in One of the Country's Busiest Death Penalty States.