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00:00:24>> YOU MAY BE SEATED.
WE ARE HERE ON CASE 1377.
00:00:42I WOULD LIKE TO NOTE THAT JUDGE
CARLA MOORE FROM THE NIGHT
00:00:47DISTRICT IS SITTING IN PLACE OF
JUSTICE O'NEILL.
00:00:50WELCOME.
>> GOOD MORNING AND MAY IT
00:00:56PLEASE THE COURT.
I REPRESENT THE APPELLANT.
00:01:01I WILL LIKE TO RESERVE FOUR
MINUTES FOR REBUTTAL.
00:01:03UNDER R.C. 2953.73(E)(1) --
>> CAN YOU ADJUST A MICROPHONE?
00:01:16>> YES.
AN APPLICANT WHO IS SENSE TO
00:01:21PROBATION GETS MORE ACCESS TO
POSTCONVICTION DNA TESTING THAN
00:01:26SOMEONE SENTENCED TO DEATH.
THE POST DNA STATUTE WAS ENACTED
00:01:31TO ENSURE APPROPRIATE ACTIONS TO
POST CONVICTION DNA TESTING AND
00:01:34IDENTIFY WRONGLY CONVICTED
PEOPLE IN OHIO.
00:01:37IN ORDER TO ENSURE APPROPRIATE
ACCESS, THE LEGISLATURE PROVIDED
00:01:45NONCAPITAL DEFENDANTS MANDATORY
MERIT REVIEW.
00:01:48THAT REVIEW HAS PROVED IMPORTANT
BECAUSE APPROXIMATELY 34% OF
00:01:53APPEALS, THAT DECISION HAS BEEN
REVERSED.
00:01:58NOW ALL 50 STATES HAVE A STATUTE
THAT PROVIDES ACCESS TO
00:02:05POSTCONVICTION DNA TESTING AND
ONLY TWO STATES BY RULE OR
00:02:08STATUTE DON'T PROVIDE SOME SORT
OF REVIEW OF A TRIAL COURT'S
00:02:14DECISION.
REVIEW OF A TRIAL COURT'S
00:02:19DECISION IS NECESSARY TO
VINDICATE.
00:02:20>> THE PROBLEM YOU SEE IS THERE
CAN BE A DENIAL BY THE TRIAL
00:02:26COURT AND THEN CURRENTLY IT
WOULD BE A PETITION TO THE
00:02:31SUPREME COURT FOR REVIEW.
IF THE REVIEW -- COURT DID NOT
00:02:38TAKE IT IN, THAT'S THE END OF
THE STORY.
00:02:40THAT'S WHAT YOU FIND
OBJECTIONABLE.
00:02:41>> THAT'S CORRECT.
FOR INSTANCE, SOMEONE WHO IS
00:02:48SENTENCED TO PROBATION GETS A
MANDATORY MERIT REVIEW.
00:02:52IT'S LOOKING FOR ERRORS IN THE
CASE.
00:02:55SOMEONE WHO IS SENTENCED TO
DEATH CAN ONLY ASK THIS COURT TO
00:02:59LOOK ABROAD QUESTIONS OF THE LAW
THAT HAVE IMPACT BE ON THE CASE.
00:03:03THEY ARE NOT LOOKING AT
INDIVIDUAL ERRORS IN THE CASE.
00:03:07THAT IS THE OBJECTIONABLE
PORTION OF R.C. 2953.73(E)(1).
00:03:12>> ARE WE THAT CONSTRAINED?
ARE WE THAT LIMITED?
00:03:26>> YES, YOUR HONOR.
WHAT THE STATUTE HAS WRITTEN IS
00:03:32THAT MR. KNOWING OR ANY APPEAL
THAT IS DENIED IN THE TRIAL
00:03:39COURT ONLY GETS TO ASK THIS
COURT FOR DISCRETIONARY REVIEW.
00:03:42THAT'S WHAT THE STATUTE SAYS.
THE CONSTITUTION AND THE RULES
00:03:49SPECIFICALLY CONSTRAIN THE
JURISDICTION ON DISCRETIONARY
00:03:52REVIEW.
-- >> THE CITIZENS TOOK OUT THE
00:04:02INTERMEDIATE APPEAL.
EVERYTHING COMES DIRECTLY HERE.
00:04:09WE GET TO LOOK AT EVERYTHING.
ON THE MERIT APPEALS?
00:04:14>> ON THE DIRECT APPEAL.
LEX WE DON'T GET TO DECLINE TO
00:04:20TAKE THOSE.
>> THAT IS CORRECT.
00:04:24>> ON THIS, WE COULD DECLINE TO
TAKE IT.
00:04:31THAT IS THE CONSTITUTIONAL ROB.
>> IT IS UNCONSTITUTIONAL UNDER
00:04:38THE DUE PROCESS CLAUSE.
THE UNITED STATES SUPREME COURT
00:04:43SAYS WANT YOU PUT AN APPELLATE
PROCESS IN PLACE, IT HAS TO
00:04:46COMPORT WITH EQUAL PROTECTION
AND DUE PROCESS.
00:04:50LOOKING AT EQUAL PROTECTION, YOU
HAVE TO LOOK AT THE CLASS OF
00:04:56PEOPLE.
IN THIS CASE, A ARE PEOPLE WHOSE
00:05:00APPLICATIONS FOR DNA TESTING HAS
BEEN DENIED.
00:05:02>> COULD THAT BE CURED OF THE
LEGISLATURE SAID OK.
00:05:07IF IT'S A DEATH CASE, THEN THESE
ISSUES GO DIRECTLY TO THE
00:05:15SUPREME COURT AND NOT TO THE
COURT OF APPEALS AS THE BASIC
00:05:19APPEAL DOES.
THE SUPREME COURT HAS TO TAKE
00:05:24THEM AND THE SUPREME COURT CAN
LOOK AT ALL THE ISSUES THE
00:05:27APPELLATE COURT WOULD NORMALLY
BE ALLOWED TO REVIEW.
00:05:31>> THAT WNULD CURE THE
CONSTITUTIONAL ERRORS IN THIS
00:05:35CASE.
IT'S NOT THE DEPRIVATION OF THE
00:05:38INTERMITTENT IT -- INTERMEDIATE
APPELLATE.
00:05:43IT'S INDIVIDUAL ERRORS IN
CAPITAL DEFENDANTS.
00:05:46>> THE REVIEW IS OF THE DECISION
WITH REGARD TO TESTING THE DNA.
00:05:54>> THE MERIT REVIEW, THERE ARE A
NUMBER OF ERRORS THAT MR. NOLING
00:06:03RAISED.
THERE WERE A NUMBER OF OTHER
00:06:08ERRORS THAT RELATE TO THAT
PARTICULAR DECISION.
00:06:09>> IN THIS CASE, MR. NOLING HAD
REVIEW OF THE DENIAL OF DNA
00:06:21TESTING AS IT RELATES TO THE
CIGARETTE BUT, CORRECT?
00:06:25>> NO.
THE CIGARETTE BUTT WAS TESTED.
00:06:32THERE HAS BEEN NO INDIVIDUALIZED
REVIEW FOR THE ENTIRETY OF HIS
00:06:38APPLICATION.
THAT IS MY POINT.
00:06:41HE DID HAVE THE TESTING AS A
RELATES TO THAT.
00:06:44WHAT WE ARE LOOKING AT NOW IS
RELATED TO THE SHELL CASINGS AND
00:06:53THE JEWELRY BOX.
>> THE ERRORS THAT HE IS SEEKING
00:07:00RELATES TO THE SHELL CASING OF
THE MURDER WEAPON AND THE RING
00:07:05BOXES THAT WERE OPENED BY THE
PERPETRATOR.
00:07:07ONE OF THE ERRORS, HE ALSO
SOUGHT TO HAVE THE SHELL CASINGS
00:07:16FROM THE MURDER WEAPON RUN
THROUGH THE DATABASE.
00:07:18MR. KNOWING SOUGHT THE ACTUAL
RESULTS OF TESTING FROM THE
00:07:26CIGARETTE BUT.
THAT WAS ONE OF THE ERRORS THAT
00:07:31TWO JUSTICES OF THIS COURT PHOTO
TO TAKE ON JURISDICTIONAL REVIEW
00:07:37.
THERE ARE A NUMBER OF THINGS
00:07:38THAT HAVE BEEN REVIEWED IA COURT
OF APPEALS.
00:07:39>> HOW DO YOU RELATE THAT TO THE
ARBITRARY IMPOSITION OF CAPITAL
00:07:48PUNISHMENT?
>> IT GOES TO DUE PROCESS.
00:07:52THE ARBITRARINESS OF CAPITAL
PUNISHMENT, I'M SORRY.
00:07:56I MISUNDERSTOOD YOUR QUESTION.
WHEN WE ARE LOOKING AT DNA
00:08:04TESTING, I THINK THE STATISTIC
IS THAT OF THE NOW OVER 300 DNA
00:08:10EXONERATIONS, 10 ARCH CAPITAL
DEFENDANTS.
00:08:14A DENIAL WOULD HAVE SOME
ARBITRARINESS IN THE IMPOSITION
00:08:23OF THE DEATH PENALTY.
>> WHAT IS THE REMEDY YOU ARE
00:08:25ASKING THE COURT TO CONSIDER IF
THE COURT AGREES WITH YOUR
00:08:29DECISION?
>> REMAND THE COURT TO THE 11TH
00:08:33DISTRICT COURT OF APPEAL FOR
MERIT REVIEW.
00:08:36>> THE CONSTITUTION SAYS THAT
COMES HERE.
00:08:47WHAT IS OUR VEHICLE TO DO THAT?
>> ALTHOUGH THE CASES DO COME
00:08:56HERE, THIS COURT HELD IN DAVIS
THAT THEY CAN STILL GO TO THE
00:09:02INTERMEDIATE COURT OF APPEALS.
>> ARE YOU LOOKING FOR A
00:09:06JUDICIAL DETERMINATION THAT
HENCEFORTH DNA REVIEW IS TO BE
00:09:16FILED WITH THE APPELLATE COURTS
AND THAT IS THEIR RESPONSIBILITY
00:09:22TO CONSIDER THOSE MATTERS IN ALL
CAPS ON CASES?
00:09:25AM I UNDERSTANDING ARGUMENT
CORRECTLY?
00:09:28>> I THINK THAT'S BROADER THAN
WHAT I'M ASKING THE COURT FOR.
00:09:33WHAT I AM ASKING FOR IS TO
REMOVE THE PORTION OF THE
00:09:38STATUTE THAT ONLY GETS TO THE
DISCRETIONARY APPEAL.
00:09:42IN THAT PARTICULAR PROCESS --
>> YOU ARE LOOKING FOR A
00:09:49DECLARATION THAT GRANTS
DISCRETIONARY REVIEW TO BE HELD
00:09:58UNCONSTITUTIONAL.
REMAND ALL THOSE MATTERS TO THE
00:10:03APPELLATE COURTS.
>> YES.
00:10:05>> INSTEAD OF DOING THAT, IF WE
WERE TO FIND THE STATUTE
00:10:11UNCONSTITUTIONAL UNDER 295373 --
R.C. 2953.73(E)(1), IF WE WERE
00:10:21TO DELETE THE WORDS MAY SEEK
LEAVE OF AND JUST SAY THE
00:10:26OFFENDER MAY APPEAL THE
REJECTION OF THE SUPREME COURT,
00:10:32IT WOULD BE THE SAME AS TO IF
THEY ARE NOT SEND DEATH THEY MAY
00:10:37APPEAL TO THE COURT OF APPEALS?
YOU PUT THE PARTIES ON IT EQUAL
00:10:41BASIS.
>> THE ONLY TROUBLING WORD THERE
00:10:45IS "MAY."
>> THAT WOULD BE A WAY TO
00:10:51CORRECT STATUTE IF WE FIND THIS
UNCONSTITUTIONAL.
00:10:56>> IF THERE WAS A WAY TO WRITE
R.C. 2953.73(E)(1) TO GIVE
00:11:02MANDATORY REVIEW AS IT DID IN
SMITH AND DIRECT APPEALS TO THIS
00:11:07COURT, THAT WOULD BE
CONSTITUTIONALLY PERMISSIBLE.
00:11:12>> YOU ARE SAYING THE WORD "MAY"
IS A PROBLEM?
00:11:21IT TALKS ABOUT THE OFFENDER WHO
IS NOT SENSED TO DEATH.
00:11:22IF THE REJECTION IS THE FINAL
APPEALABLE ORDER AND THE
00:11:28OFFENDER MAY APPEAL TO THE COURT
OF APPEALS.
00:11:32>> WHAT WOULD YOU REPLACE IT
WITH?
00:11:35>> FOR CLARITY PURPOSES I WOULD
TAKE THE LANGUAGE THROUGH ISSUE
00:11:44ONE IN TWO BC.
MAKE IT CLEAR THAT IT WAS JUST
00:11:53AN INDIRECT APPEAL, A MANDATORY
MERIT REVIEW TO THE COURT.
00:11:57FOR CLARITY PURPOSES, JUST TO
MAKE SURE THAT THERE IS NO
00:12:06DISCUSSION LATER THAT THIS IS
STILL IN DISCRETIONARY REVIEW.
00:12:08>> THE "MAY" RELATES TO THE
ACTIVITY THE DEFENDANT WILL DO.
00:12:16THEY DID NOT PUT IN THE WORD
"SHALL."
00:12:23WE COULD NOT STRIKE SOME
LANGUAGE, AND NOTED TO FIX THIS
00:12:31PROBLEM WE CAN'T INSERT A WORD.
WE CAN ONLY SEVER IT.
00:12:34THAT IS THE ONUS ON THE OFFENDER
TO TAKE WHATEVER LEGAL COURSE OF
00:12:45ACTION, CORRECT?
>> THE WORD "MAY" AS A GENERAL
00:12:55MATTER, MY ONLY CONCERN IS
REVIEWING THE MERIT REVIEW.
00:13:05THAT IS MY ONLY CONCERN.
>> YOU'VE GOT TWO CHOICES.
00:13:08IF WE STRIKE THE WHOLE THING,
IT'S UP TO THE LEGISLATURE TO
00:13:13FIX.
IF WE SEVER, YOU GET A QUICKER
00:13:16RESULT AND THERE IS NO GUARANTEE
THE LEGISLATURE IS GOING TO SEE
00:13:21THINGS ANY DIFFERENTLY THAN HOW
THEY WOULD RECONSTRUCT THIS
00:13:25STATUTE.
IF THIS COURT SEEKS TO ONLY
00:13:29SEVER, SEPARATE AND KEEP THE
MERIT REVIEW, THAT WOULD BE
00:13:38CONSTITUTIONALLY ADEQUATE.
>> THIS RELATES TO THE DNA
00:13:41TESTING.
THAT'S NOT YOUR WHOLE PROBLEM
00:13:44WITH REVIEW, IS IT?
IT IS THE DNA TESTING IN THIS
00:13:49CASE.
YOU BROUGHT UP THE ISSUE OF
00:13:56OTHER ISSUES POSTCONVICTION
DON'T GO TO THE APPELLATE COURT
00:14:05BUT ARE DISCRETIONARY CONSENTED
TO THE SUPREME COURT.
00:14:07I THOUGHT I HEARD YOU SAY THAT.
>> I AM SORRY, YOUR HONOR.
00:14:16WOULD YOU CLARIFY?
>> THE STATUTE WE ARE TALKING
00:14:22ABOUT, R.C. 2953.73(E)(1), IT
INVOLVES DNA TESTING.
00:14:26YOU WOULD BE SATISFIED IF THIS
COURT WOULD EXCISE CERTAIN WORDS
00:14:34IN THEIR AND THAT'S WHAT YOU'RE
ASKING FOR AT THIS POINT?
00:14:37>> YES.
>> IN THE INTEREST OF WRAPPING
00:14:46UP AS MUCH AS POSSIBLE, IS THIS
CASE IN A POSTURE WHERE IF WE
00:14:54DID THE MODIFICATION THAT HAS
JUST BEEN DISCUSSED, COULD WE
00:15:00SAY TO DO THE TESTING THAT IS
REQUESTED?
00:15:08IS THAT A CASE FOR ANOTHER DAY?
>> I'M SURE THE STATE WOULD
00:15:16AGREE WITH ME.
IF THE COURT THAT A MERIT REVIEW
00:15:18TO EXCISE THAT PORTION, I'M SURE
A BRIEFING WOULD BE THE NEXT
00:15:23STEP.
THE STORE -- COURT TO TAKE
00:15:28JURISDICTION AND REVIEW THE
MERITS.
00:15:29>> YOUR FRIENDS AT THE STATE SAY
IN TERMS OF RATIONAL BASIS
00:15:41REVIEWS, THERE IS A BASIS FOR
DIFFERENT BETWEEN A CAPITAL IN
00:15:48NONCAPITAL DEFENDANTS.
CAN YOU TALK ABOUT WHY YOU WOULD
00:15:54DISAGREE WITH THAT?
WHY IS THERE NO RATIONAL BASIS
00:15:58FOR DIFFERENTIATING?
>> THE STATE PROFFERS A FEW
00:16:03REASONS.
THE MOST LIKELY IS THE LEADING
00:16:08CAUSES DELAY.
THAT'S WHY THE LEGISLATURE TRIED
00:16:11TO WRITE INTO THIS THE
INTERMEDIATE REVIEW.
00:16:16POSTCONVICTION DNA TESTING IS
DIFFERENT.
00:16:20IT'S NOT A REASON TO EITHER
DELAY SETTING A DATE OF
00:16:27EXECUTION OR CARRYING OUT AN
EXECUTION ITSELF.
00:16:29IT'S NOT A COLLATERAL ATTACK ON
THE CONVICTION.
00:16:33EVEN SUCCESS DOES NOT ENSURE
GETTING TESTING.
00:16:43IT COULD BE INCONCLUSIVE.
IT IMPLICATED HIM IN THE CRIME.
00:16:53DNA TESTING IS NOT SOMETHING
THAT WOULD DELAY.
00:16:57IN MR. NOLING'S CASE, BECAUSE
THERE IS A NEW KYLE MOTION, --
00:17:12TRIAL MOTION, IT HAS BEEN ON
HOLD FOR THE DNA PORTION.
00:17:18THERE REALLY IS NO RATIONAL
BASIS.
00:17:24THE MERIT REVIEW WHEN WE ARE
TALKING ABOUT ERRORS IN AN
00:17:28INDIVIDUAL CASE, MANDATORY MERIT
REVIEW IS WHAT DOES IT.
00:17:36NOT A DISCRETIONARY REVIEW.
IN THE LOWER CASES, IT SHARES
00:17:45THAT OUT.
>> THANK YOU.
00:17:47YOU HAVE USED YOUR TIME.
>> GOOD MORNING, MADAM CHIEF
00:18:02JUSTICE.
ASSOCIATE JUSTICES.
00:18:0627 YEARS AGO, HE MURDERED CORA
BERNHARDT IN THEIR KITCHEN.
00:18:18I STOOD BEFORE THIS COURT THREE
TIMES NOW ON THIS CASE ARGUING
00:18:25VARIOUS ASPECTS.
THIS IS THE SECOND TIME I'VE
00:18:28BEEN BEFORE THIS COURT ON THIS
PARTICULAR STATUTE, THE
00:18:34SUBDIVISION OF THE STATUTE ON
THE ISSUE OF CONSTITUTIONALITY
00:18:37OF THE STATUTE.
THE COURT FOUND IN 2013 THAT THE
00:18:45STATUTE WAS CONSTITUTIONAL.
>> THE ARGUMENT WAS NOT EQUAL
00:18:49PROTECTION AT THAT TIME?
SPECIFICALLY?
00:18:53>> THE CASE WAS TAKEN IN ON
STATUTORY ROUNDS AND THE COURT
00:19:02ASKED US TO BRIEF
CONSTITUTIONALITY IN LIGHT OF
00:19:06DAVIS.
IN THE OPINION AS WRITTEN, JUDGE
00:19:09O'DONNELL IN A DISSENT DID RAISE
CONSTITUTIONALITY, DID RAISE DUE
00:19:18PROCESS, DID RAISE EQUAL
PROTECTION AND THE COURT
00:19:21REJECTED THOSE ANALYSES AND
CITED STATE THE SMITH AND ITS
00:19:28REJECTION.
THE COURT HAS LOOKED AT THIS
00:19:32BEFORE.
IT HAS LOOKED AT EQUAL
00:19:35PROTECTION.
HERE WE ARE AGAIN TODAY.
00:19:39THE COURT FOUND IN NOLING, THE
LAST TIME I WAS HERE, THE
00:19:48LEGISLATURE DID PROPERLY
RESTRICT THE COURT OF APPEALS
00:19:55JURISDICTION.
THIS COURT COULD PROPERLY HERE
00:19:58APPEALS.
THE LEGISLATURE IN CRAFTING THIS
00:20:06STATUTE LOOKED LONG AND HARD AT
CONSTITUTIONALITY.
00:20:10IT'S NOT SOMETHING THEY SKIPPED
OVER OR GLOSSED OVER.
00:20:14WHEN THIS WAS PASSED IN 2003,
THE LEGISLATURE CONTEMPLATED NO
00:20:21APPEALS FROM THIS.
IT WOULD HAVE BEEN IN THEIR
00:20:26POWER TO DO THAT.
NO COURT HAS EXTENDED
00:20:34CONSTITUTIONAL PROTECTIONS TO
COLLATERAL ATTACKS TO CONVICTED
00:20:42FELONS.
NO COURT EVER.
00:20:44THE APPELLATE IS ASKING THE
COURT TO TAKE A TREMENDOUS LEAP
00:20:52AND GO WHERE NO COURT HAS GONE
BEFORE.
00:20:53IT EXTENDS CONSTITUTIONAL
PROTECTIONS TO POSTCONVICTION
00:21:00AND PROCEDURES.
THE LEGISLATURE CRAFTED THIS
00:21:05WITH DUE REGARD TO ISSUE ONE,
THE RATIONAL BASIS OF EXPEDITING
00:21:14THESE APPEALS AND NOT PERMITTING
ENDLESS REQUESTS FOR DNA.
00:21:19THIS CASE IS THE POSTER CHILD
FOR THAT.
00:21:22IT'S THE THIRD REQUEST FOR DNA
FROM THIS DEFENDANT.
00:21:26HERE I AM AGAIN AT THE SUPREME
COURT.
00:21:29>> I GUESS THE POSITION OF THE
APPELLANT HERE IS WHAT THEY ARE
00:21:40ASKING FOR IS PROVIDED TO OTHER
CONVICTED DEFENDANTS OR FELONS.
00:21:46IT'S NOT AVAILABLE TO A DEATH
PENALTY DEFENDANT.
00:21:54>> THE TRACK OF THE APPEAL,
THAT'S TRUE.
00:21:58THERE IS NO REQUIREMENT THAT THE
SO.
00:22:01IT IS A CONVICTION.
>> THEY HAVE A DIRECT APPEAL TO
00:22:06THE SUPREME COURT.
>> THAT'S WHERE DUE PROCESS AND
00:22:11EQUAL PROTECTION COME IN.
THEY ARE ENTITLED TO A FAIR
00:22:14TRIAL.
THEY ARE IN TITLED -- ENTITLED
00:22:18TO ONE DIRECT APPEAL.
>> WHAT ABOUT THE REALITY THAT
00:22:24OFTEN TIMES THIS TESTING, THIS
DNA TESTING HAS EXONERATED
00:22:32PEOPLE ON DEATH ROW?
WHAT ABOUT THE TREND I WOULD SAY
00:22:38IN THE LEGAL CIRCLES?
BECAUSE DEATH IS DIFFERENT AND
00:22:43YOU DON'T WANT TO LEAVE ANY
STONE UNTURNED, YOU DO AFFORD
00:22:50THIS EXTRA LAYER?
PHILOSOPHICALLY, HOW WOULD YOU
00:23:04LOOK AT THAT?
>> THAT HASN'T BEEN THE CASE LAW
00:23:06IN DEALING WITH CAPITAL VERSUS
NONCAPITAL DEFENDANTS.
00:23:08THEY ARE NOT A SUSPECT CLASS.
THEY ARE NOT ENTITLED TO EQUAL
00:23:13PROTECTION AFTER CONVICTION.
IN OHIO, IT'S INCORRECT TO SAY
00:23:24THERE IS NO REVIEW FOR CAPITAL
DEFENDANTS.
00:23:26THERE ONLY THREE CASES SINCE
2003 WHEN THIS STATUTE WAS
00:23:36ENACTED THAT HAVE COME TO THIS
COURT.
00:23:37ONLY NINE CAPITAL DEFENDANTS
HAVE SOUGHT DNA TESTING.
00:23:44ONLY THREE CAME TO THIS COURT.
>> IS THE ONE THAT STAYED IN THE
00:23:57TRIAL COURT, WAS THE DNA OFFERED
CONFIRMATION IN THOSE CASES?
00:24:06>> I DON'T KNOW THE ANSWER TO
THAT.
00:24:10I KNOW THE ANSWER TO THE FREE
THAT ATTEMPTED TO COME HERE --
00:24:16THREE THAT ATTEMPTED TO COME
HERE.
00:24:18THEY DID NOT SEEK BEFORE THIS
COURT.
00:24:22THIS CASE IS ONE OF THE THREE.
>> THAT WAS NOT ON DNA?
00:24:39NOT A CAPITAL CASE.
SORRY.
00:24:41>> EVEN IN THE REVIEW THAT COMES
TO THIS COURT, THE RECORD BELOW
00:24:47IS TRANSMITTED AND CONTAINS
TRANSCRIPTS OF WHAT HAPPENED
00:24:51LOW.
IT IS REVIEWED BY THIS COURT.
00:24:55I'VE GOT TO BELIEVE THAT THE
COURT AND YOUR CLERKS UPSTAIRS
00:25:02ARE NOT THROWING DICE TO
DETERMINE WHICH CASES COME
00:25:04BEFORE IT.
THERE IS SOME REVIEW OF WHAT IS
00:25:08HAPPENING IN THIS CASE.
THIS COURT IS FAMILIAR WITH
00:25:12THESE CASES.
AFTER NOLING 2, THE COURT IS NOT
00:25:29LIMITED TO FINDING SOME GREAT
CONSTITUTIONAL QUESTION OR ISSUE
00:25:35OF GREAT PUBLIC INTEREST.
>> I GUESS THAT'S WHAT I THOUGHT
00:25:40AS WELL.
ONCE IT'S HERE, IT'S A DEATH
00:25:45CASE, THERE ARE NO LIMITS ON
WHAT WE CAN EXAMINE OR REVIEW.
00:25:53>> THE OF PELLET RULE ALLOWS THE
COURT TO BRING IT APPEALS.
00:26:02THAT'S WHAT IT DOES.
>> WHILE IT'S NOT PART OF THE --
00:26:14WHAT WE ARE HERE TO DECIDE
TODAY, ISN'T THERE A TO P --
00:26:19DISPUTE THAT WHATEVER EXISTS IN
RESPECT TO THESE CASING IS
00:26:26COMPROMISED TO THE POINT THAT IT
HAS NO VALUE?
00:26:30WE HAVE AN ARGUMENT ABOUT
SOMETHING THAT LEADS NOWHERE.
00:26:39>> WE ARE HERE BECAUSE IT'S
GOING TO CAUSE ANOTHER TWO OR
00:26:46THREE YEAR DELAY IN EXECUTING
MR. NOLING.
00:26:52THESE WERE HANDLED BY MANY
POLICE OFFICERS.
00:26:57ONE WROTE MAGIC MARKER ON THE
CASING.
00:27:02THEY ARE UNTESTABLE.
>> THEY ARE UNTESTABLE FOR
00:27:08FINGERPRINTS OR OTHER DNA
TESTING?
00:27:10>> ANY TYPE OF DNA.
>> DID THEY DO A BALLISTICS
00:27:16ANALYSIS ON THESE?
ISN'T THAT ONE OF THIS THING
00:27:20THAT THEY ARE ASKING FOR?
THE SHELL CASING STEW BE
00:27:25EXAMINED?
ISN'T THAT SOMETHING, DID I READ
00:27:33THAT?
>> I BELIEVE SO.
00:27:36>> WHEN YOU LOOK AT NOLING 2,
THE MAJORITY SPECIFICALLY SAID
00:27:45THAT THOUGH THERE APPEARED TO BE
CONSTITUTIONAL QUESTIONS, IT WAS
00:27:54NOT RAISED BY THE PARTY.
THAT'S WHAT PARAGRAPH 28 SAID
00:27:58IT.
NOW WE ARE ASKED TO LOOK AT E 1
00:28:04WITH THE SPECIFICITY OF SECTION
ONE AND SECTION TWO WHERE
00:28:09CAPITAL DEFENDANTS MAY GET
APPEAL ONLY WITH THE DISCRETION
00:28:13OF THE COURT.
THAT'S WERE THE EQUAL PROTECTION
00:28:25ARGUMENT IS BEFORE US.
FOR THE FIRST TIME.
00:28:26>> THE REST OF THE PARAGRAPH
REFERS TO THE DISSENT.
00:28:31IT REBUTS THAT BY SAYING THE
COURT HAD PREVIOUSLY RULED THIS
00:28:41STATUTE CONSTITUTIONAL.
>> WE WERE LOOKING AT SMITH, THE
00:28:45OVERALL TRACKS.
WE WEREN'T TALKING ABOUT THE
00:28:54SPECIFICITY THAT WE HAVE HERE.
>> THAT IS A BLABER .3 YOU DID
00:28:58LOOK AT THE DISSENT.
IT ARGUED EQUAL PROTECTION.
00:29:03>> THAT'S NOT THE SAME AS SAYING
IT IN THE MAJORITY.
00:29:08THE QUESTION I HAVE IS LOOKING
AT ONE AND TWO AND THE ARGUMENT
00:29:15OF IF WE WERE TO FIND THE
STATUTE UNCONSTITUTIONAL FOR
00:29:22EQUAL PROTECTION REASONS, COULD
THE DELETION OF THE SUPREME
00:29:28COURT, GETTING RID OF THAT
LANGUAGE WHERE YOU COULD MAKE IT
00:29:33SYNONYMOUS WITH TWO AND SAY THE
REJECTION COULD BE APPEALED TO
00:29:40THE SUPREME COURT, WITH THAT
RESOLVE THE PROBLEM?
00:29:43>> I DON'T THINK THE COURT CAN
OR SHOULD GO THERE.
00:29:48IT'S NOT A CONSTITUTIONAL
QUESTION FOR THIS COURT TO TAKE
00:29:53UP.
AS I SAID PREVIOUSLY, NO COURT
00:29:59HAS EVER EXTENDED THIS KIND OF
CONSTITUTIONAL ANALYSIS TO A
00:30:05CONVICTED DEFENDANT WHO CHOOSES
TO TAKE A CIVIL COLLATERAL
00:30:10ATTACK TO HIS CONVICTION.
THIS IS NOT UNDER THE UMBRELLA
00:30:17OF THE CONSTITUTION OR EQUAL
PROTECTION OR DUE PROCESS.
00:30:20>> HAS ANY STATE TREATED FELONS
DIFFERENT FROM CAPITAL
00:30:26DEFENDANTS THE WAY OHIO HAS IN
AFFORDING DNA REVIEWS?
00:30:32TO YOUR KNOWLEDGE?
>> MASSACHUSETTS.
00:30:38I CAN'T REMEMBER THE EXACT
CITATION.
00:30:41THE MASSACHUSETTS SUPREME COURT
DID THAT.
00:30:46IT WAS IN THE FEDERAL COURTS
HELD TO BE CONSTITUTIONAL.
00:30:50>> THE TREATMENT BETWEEN FELONS
AND CAPITAL DEFENDANTS HAVE BEEN
00:30:55AFFIRMED?
>> IN THE MASSACHUSETTS COURT.
00:31:01>> WAS THAT A CIRCUIT COURT?
>> IT'S IN OUR BRIEF.
00:31:08I THINK THE AG ALSO CITES TO IT.
>> OTHER THAN MASSACHUSETTS, YOU
00:31:23ARE NOT AWARE OF THIS COMING UP
ELSEWHERE?
00:31:24>> IF IT HAS, THE CLERK'S --
COURTS HAVE DECLINED THIS KIND
00:31:30OF EXTENSION.
>> HOW EXTENSIVE IS THIS
00:31:42PROBLEM?
>> IT'S NOT.
00:31:44THREE TIMES IN CERTAIN TEEN
YEARS.
00:31:48-- 13 YEARS.
THE OTHER SIDE OF THE COIN IS
00:31:54IT'S NOT A GREAT WORD AND ON THE
COURT WHEN IT'S ASKED TO REVIEW.
00:31:59YOU HAVE THE RECORD IN FRONT OF
YOU.
00:32:06YOU HAVE HEARD THE MERIT
DECISION.
00:32:08YOU ARE THE COAT -- COURT MOST
FAMILIAR WITH THE CASE.
00:32:15YOU CAN COMPARE IT TO OTHER
CAPITAL CASES.
00:32:17I KNOW THIS COURT WOULD TAKE THE
TIME TO GET A GOOD LOOK AT IT.
00:32:24IN THAT DECISION, THIS SHOULD
PREVENT CONTINUOUS DNA APPEALS.
00:32:36THIS GOES AGAINST THE WILL OF
THE PEOPLE OF THE STATE AS
00:32:41EXPRESSED IN ISSUE ONE IN THIS
CONSTITUTIONAL CHANGE WHICH CAME
00:32:47FROM ISSUE ONE.
THESE CAPITAL CASES BE
00:32:52EXPEDITED.
WE ARE STANDING HERE 27 YEARS
00:32:56AFTER THE CRIME.
WE'RE NOT TELLING THE PEOPLE OF
00:33:01OHIO THEY SHOULD NOT HAVE FAITH
IN THEIR CRIMINAL JUSTICE
00:33:05SYSTEM.
THAT JUDGE THAT JUDGMENTS ARE
00:33:09MEANINGLESS.
>> WHY WOULD IT BE OBJECTIONABLE
00:33:18, AND I JUST HEARD EVERYTHING
YOU SAID, IF HE RECOMMENDATION
00:33:25HERE IS TO STRIKE THE LANGUAGE.
YOU EXCISE THAT AND MAKE THE DNA
00:33:36APPEAL SIMILAR TO THE DIRECT
APPEAL RIGHTS.
00:33:40IF THE COURT DOES STRIKE THOSE
WORDS AND IT BECOMES AN
00:33:52AUTOMATIC APPEAL, HE DOES APPEAL
TO THE SUPREME COURT.
00:33:59WHAT IS THE DOWNSIDE OF DOING
THAT?
00:34:03>> YOUR INFRINGING ON THE
LEGISLATIVE FUNCTION.
00:34:09>> WE DO THAT.
THAT'S OUR JOB SOMETIMES.
00:34:13>> ONLY WHEN THERE IS PROOF THAT
THE LEGISLATURE HAS OVERSTEPPED
00:34:19ITS BOUNDS.
THEY'VE CREATED SOMETHING THAT
00:34:21IS UNCONSTITUTIONAL.
OTHERWISE, THIS COURT WOULD BE
00:34:25LEGISLATING.
THE LEGISLATURE LOOKED AT IT
00:34:28CAREFULLY.
>> YOU SAY WE ARE PRECLUDED TO
00:34:31FIND THIS UNCONSTITUTIONAL BASED
ON OUR RECORD IN SMITH AND OUR
00:34:37SISTER STATES ACROSS THE COUNTRY
, ACID JUICES ETC. --
00:34:45MASSACHUSETTS ETC.
>> THIS COURT WOULD TAKE A
00:34:49TREMENDOUS LEAP.
YOU WOULD HAVE TO SAY THAT THERE
00:34:54WERE CONSTITUTIONAL GROUNDS TO
DO SO.
00:34:55THE LEGISLATURE OVERSTEPPED ITS
AUTHORITY.
00:34:58IT CREATED THESE STATUTES AS
RESULT OF THE CONSTITUTIONAL
00:35:04CHANGE.
THE STATE LEGISLATURE IN ITS
00:35:09DELIBERATIONS HAD SOMEHOW RAN
AFOUL OF THE CONSTITUTION.
00:35:13I DON'T THINK THAT'S THE CASE.
THEY COULD HAVE AFFORDED NO
00:35:17APPEAL HERE.
>> ISN'T THAT THE POINT?
00:35:20THE ISSUE IS SECTION TO WHERE
YOU SAY FOR NONCAPITAL CASES
00:35:26ANYONE WHO HAS THE REJECTION OF
DNA REQUESTS HAS THE RIGHT TO A
00:35:32MERIT APPEAL.
THE QUESTION IS WHY SHOULDN'T
00:35:42THAT BE GIVEN IN CASES WHERE WE
HAVE THE CAPITAL DEFENDANT.
00:35:47>> YOU WOULD HAVE TO FIND THE
LEGISLATION RAN AFOUL OF THE
00:35:53CONSTITUTION.
>> THAT'S THE QUESTION.
00:36:05WHAT IS THE DISTINCTION?
WHAT IS THE RATIONAL DISTINCTION
00:36:07IN THIS PARTICULAR SITUATION
BETWEEN THE TWO?
00:36:09>> THERE IS NO FUNDAMENTAL RIGHT
OF A CAPITAL DEFENDANT TO PCR
00:36:13DNA REVIEW.
>> THE SAME IS TRUE FOR
00:36:16NONCAPITAL?
>> THAT'S RIGHT.
00:36:19CAPITAL DEFENDANTS ARE NOT A
SUSPECT CLASS UNDER EQUAL
00:36:25PROTECTION.
>> NEITHER ARE NONCAPITAL
00:36:29FELONS.
>> THE DIFFERENCES THEY ARE NOT
00:36:33SIMILARLY SITUATED.
THIS COURT SPENT TWO OR THREE
00:36:39PAGES IN THE SMITH DECISION
EXPLAINING WHY CAPITAL
00:36:45DEFENDANTS WERE NOT SIMILARLY
SITUATED.
00:36:47THEREFORE, THE LEGISLATURE CAN
TREAT THEM DIFFERENTLY.
00:36:56>> IN THE SMITH CASE, WE WERE
TALKING ABOUT THE TWO PARALLEL
00:37:01PATHS.
WE WERE NOT TALKING ABOUT NO
00:37:04RIGHT TO APPEAL.
>> IT APPLIES IN EITHER REVIEW.
00:37:09THEY ARE NOT SIMILARLY SITUATED.
>> IS YOUR POINT THAT THE
00:37:19ULTIMATE REVIEW IS A
DISCRETIONARY REVIEW IN EITHER
00:37:23CASE?
CAPITAL DEFENDANTS AND
00:37:29NONCAPITAL DEFENDANTS?
THIS COURT HAS A DISCRETIONARY
00:37:33REVIEW OVER BOTH?
IT'S A DIRECT APPEAL BY VIRTUE
00:37:38OF THE STATUTE TO THIS COURT IN
CAPITAL CASES AND AN INDIRECT
00:37:43REVIEW THROUGH THE COURT OF
APPEALS IN THE NONCAPITAL CASE?
00:37:46IS THAT YOUR ARGUMENT?
>> YES.
00:37:52THE NONCAPITAL HAVE AN APPEAL TO
THE APPELLATE COURT.
00:37:57>> WE HAVE TO TAKE THEIR APPEAL.
THAT'S THE CRUX OF THE ARGUMENT
00:38:04HERE.
A NONCAPITAL DEFENDANT IS
00:38:09AFFORDED AN APPELLATE REVIEW
THAT IS NOT DISCRETIONARY.
00:38:14THE APPELLATE COURT HAS TO DO
THAT.
00:38:17IN A CAPITAL CASE, THEY DO GET A
BITE AT THE APPLE SO TO SPEAK.
00:38:25IT'S THE SUPREME COURT, BUT IT'S
DISCRETIONARY.
00:38:29THEY DON'T HAVE TO TAKE IT.
I THINK THAT'S THE CRUX OF THE
00:38:34DISPARATE TREAT IT.
>> AGAIN, YOUR ANALYSIS IS A
00:38:42CONSTITUTIONAL ANALYSIS.
THERE IS NO CONSTITUTIONAL BREAK
00:38:48HERE.
YOUR ASSUMPTION IS THE
00:38:51DISCRETIONARY REVIEW TO THIS
COURT IS NO REVIEW.
00:38:54I DISPUTE THAT.
I THINK THE COURT KNOWS AS THESE
00:39:02CASES COME IN, IT MUST TRANSMIT
THE RECORD.
00:39:04IT MUST BRING THE RECORD LOW AND
THE TRANSCRIPTS UP.
00:39:10YOU DO GIVEN A THOROUGH LOOK.
YOU AND YOUR CLERKS ARE FAMILIAR
00:39:17WITH THE CASE.
IT'S IMPROPER TO SAY THAT YOU
00:39:23ARE REJECTING THESE THINGS
WILLY-NILLY.
00:39:24THAT IS NOT HAPPENING.
>> MAYBE I DID NOT FULLY
00:39:31COMPREHEND IT.
DID YOU TELL US THERE WERE NINE
00:39:39SUCH APPEALS AND WE TOOK THREE?
>> SINCE 2003, NINE HAVE
00:39:44ATTEMPTED.
THEY HAVE FILED WITH THE TRIAL
00:39:48COURT'S.
>> WE TOOK ONE AND DID NOT TAKE
00:39:58TOO.
>> ONE OF THOSE WAS MOVING OUT.
00:40:00MOOTED OUT OR IN -- OUT.
>> TO THE OTHER GO TO FEDERAL
00:40:12COURT?
>> THE SAMPLE WAS INADEQUATE FOR
00:40:17TESTING.
WHEN THAT HAPPENS, YOU'RE PRETTY
00:40:20MUCH DONE EVERYWHERE.
>> YOU ARE SAYING THAT'S WHAT IS
00:40:27THE CASE IN NOLING NOW.
>> YOU DID NOT TAKE IN THOSE
00:40:34ASSIGNMENTS.
I THINK THAT IS MOOT.
00:40:40YOU TOOK ONLY THE CONSTITUTIONAL
QUESTION.
00:40:43THAT'S WHY WE'RE HERE.
>> THANK YOU.
00:40:47YOU HAVE USED YOUR TIME.
YOU MAY TAKE A MINUTE.
00:40:51>> THE 1.I WAS LIKE TO MAKE IS
THE STATE HAS ARGUED IT WOULD BE
00:41:02A LEAP THIS COURT TO EXTEND DUE
PROCESS AND EQUAL PROTECTION TO
00:41:07THE PROCESS PROVIDED UNDER THE
DNA TESTING STATUTE.
00:41:12THIS COURT HAS EXTENDED EQUAL
PROTECTION TO JUDICIAL RELEASE
00:41:20STATUTES AND THE SUPREME COURT
HAS PROVIDED BOTH EQUAL
00:41:25PROTECTION AND DUE PROCESS
PROTECTION THROUGH CIVIL CASES
00:41:31AS WELL AS EVICTION.
THE QUESTION IS ONCE THE STATE
00:41:38GIVES A PROCESS UNDER THE
STATUTE, IT MUST COMPORT WITH
00:41:44DUE PROCESS.
>> I THOUGHT HE ARGUED THAT NO
00:41:50STATE HAS EXTENDED
POSTCONVICTION DNA -- DNR TO
00:41:58THIS LEVEL.
THERE IS NO PROTECTION, IF I
00:42:04UNDERSTOOD HIS ARGUMENT
CORRECTLY.
00:42:05THERE IS A COLLATERAL ATTACK AND
NO STATE HAS DONE THAT.
00:42:10>> THE DNA IS NOT A COLLATERAL
ATTACK.
00:42:14IT'S A CIVIL PROCESS.
>> THERE IS IN A SAMPLE TO BE
00:42:20TESTED.
>> THAT'S NOT CORRECT.
00:42:24WE DISAGREE WITH THAT.
THERE HAS BEEN NO TESTING TO
00:42:26SHOW THERE IS NO DNA THERE.
>> THAT'S NOT THE REASON IT'S
00:42:32BEEN CONTAMINATED.
IT'S THE WAY IT'S BEEN HANDLED
00:42:35IN PROCESS.
THERE IS NO ABILITY TO BE --
00:42:42IT'S NOT A PRISTINE SAMPLE
BECAUSE OF THE HANDLING BY
00:42:44WHOMEVER IN THE LAST YEARS.
>> QUANTITY AND QUALITY
00:42:51DETERMINATIONS UNDER THE
STATUTE, THOSE ARE SCIENTIFIC
00:42:56TERMS AND MUST BE DETERMINED BY
SCIENTIFIC TESTING.
00:42:58EVEN THIS THERE IS SOME
CONTAMINATION, IT'S THE SAME DNA
00:43:03PROFILE ON THE CIGARETTE BUT AND
ON THE SHELL CASING, EVEN THOUGH
00:43:08ANOTHER PROFILE MIGHT BE
PRESENT, THE ONLY PERSON WHO
00:43:13WOULD HAVE TOUCHED THAT
CIGARETTE. AND TOUCH THOUGH
00:43:15SHOWCASING IS THE PERSON WHO
KILLED.
00:43:18THAT'S WHO WE ARE ASKING FOR.
WE NEED REVIEW IN ORDER TO
00:43:26ANSWER THOSE QUESTIONS.
>> YOU THINK THERE IS A
00:43:30CONSTITUTIONAL RIGHT TO THIS
DISCRETIONARY REVIEW?
00:43:32>> THERE IS A PROCESS AND
PROCEDURAL DUE PROCESS REQUIRING
00:43:44THAT THE PROCESS NOT BE
ARBITRARILY DENIED.
00:43:47IT WOULD BE SUFFICIENT TO DENY
THE RIGHTS PROVIDED.
00:43:52THAT'S WHAT WE ARE ASKING FOR.
>> WHAT ABOUT THE POINT THAT WAS
00:43:57DISCUSSED WHEN HE SAID THAT OUR
REVIEW AS A COURT, WHEN THE
00:44:06APPEAL IS MADE IT TO US, IT'S @
REVIEW OF THE DETERMINATION?
00:44:14IT DOES AFFORD THE DEFENDANT WHO
IS MOTIONING TO HAVE THE DNA
00:44:22REVIEW, WE DO REVIEW WHAT
HAPPENED IN THE TRIAL COURT WITH
00:44:28REGARD TO THAT TOPIC.
>> THIS COURT HAS DESCRIBED
00:44:33DIFFERENCES BETWEEN THE MERIT
REVIEW PROCESS AND ITS
00:44:37JURISDICTIONAL REVIEW.
THE COURT HAS DESCRIBED THE
00:44:40MERIT PROCESS IN THE
INTERMEDIATE COURT OF APPEALS AS
00:44:44LOOKING AT INDIVIDUAL RIGHTS.
ONLY LOOKING WITH RESPECT TO
00:44:49DISCRETIONARY REVIEWS, IT'S A
PRODUCT QUESTION.
00:44:52THERE CAN BE INDIVIDUAL ERRORS
IN A CASE.
00:44:56>> WHAT CASE ARE REFERRING TO?
>> I AM SORRY.
00:45:08IT IS NOW PRESENTLY ESCAPING ME.
I'VE ALSO SAY IT IS PRESCRIBED
00:45:21WITHIN THE OHIO CONSTITUTION
WHEN YOU ARE LOOKING AT
00:45:23DISCRETIONARY REVIEW.
>> WE DO TAKE INTO CONSIDERATION
00:45:30WHEN WE DETERMINE WHETHER TO
TAKE A CASE IN, WHETHER THERE IS
00:45:32A CONSTITUTIONAL QUESTION AT
STAKE.
00:45:34IN ADDITION TO SOME OF THE OTHER
CRITERIA THAT QUITE FRANKLY, I'M
00:45:43NOT SURE WE'RE ALWAYS ON THE
SAME PAGE ABOUT WHAT WE TAKEN.
00:45:45THERE IS A REVIEW DONE.
I CAN ASSURE YOU OF THAT.
00:45:50IF THERE IS A REQUEST THAT WE
TAKE IT IN BECAUSE IT'S A
00:45:57CONSTITUTIONAL ISSUE, IT IS
REVIEWED UNDER THAT CONTEXT.
00:46:01>> I THINK ONE OF THE THINGS
THAT HE MENTIONED, THE RECORD IS
00:46:08TRANSMITTABLE.
THERE WAS EXPERT TESTIMONY THAT
00:46:13WAS IN THE TRIAL COURT IN THIS
CASE.
00:46:16THAT TRANSCRIPT, YOU DID NOT
HAVE THE TRANSCRIPT.
00:46:22>> THAT'S CORRECT.
I'M NOT SURE IT'S FAIR OR
00:46:33CORRECT TO CHARACTERIZE THE
GENERAL STANDARDS THAT WE APPLY
00:46:41TO WHICH CASES WE SELECT ON A
JURISDICTIONAL BASIS TO APPLY
00:46:47THAT TO DEATH CASES.
I THINK THE INDIVIDUAL MEMBERS
00:46:54OF THIS COURT WHEN IT'S A DEATH
CASE ARE WILLING TO GO THE EXTRA
00:47:01MILE AND THEN SOME IN TERMS OF
GIVING THE DEFENDANTS ANY
00:47:09CREDIBLE ARGUMENT.
OUR INDIVIDUAL ANALYSIS ON
00:47:20WHETHER OR NOT TO TAKE A CASE IS
MUCH DIFFERENT WHEN WE ARE
00:47:24LOOKING AT A BREAK FROM A
CRIMINAL ON A GARDEN-VARIETY
00:47:36THEN A DEATH CASE.
I THINK THAT WOULD BE OBVIOUS TO
00:47:43EVERY PROSECUTOR AND EVERY
DEFENSE PRACTITIONER.
00:47:45I THINK BECAUSE IT'S DIFFERENT,
THE COURT SHOULD -- THE LOWER
00:47:58ERRORS THAT THE COURT DID NOT
TAKE UP IN THIS CASE, IT'S
00:48:02CERTAINLY IMPORTANT ERRORS THAT
SHOULD BE ADDRESSED.
00:48:05WITH RESPECT TO THE ACTUAL
RESULTS IN THE CASE, TO MEMBERS
00:48:11OF THE COURT THOUGHT IT WAS
IMPORTANT ENOUGH TO REVIEW.
00:48:14I UNDERSTAND THE COURT'S
POSITION.
00:48:17MAYBE THIS REVIEW IS PROVIDING
MORE SCRUTINY.
00:48:22WHAT WE ARE ASKING FOR IS THE
SAME MERIT REVIEW THAT ALL
00:48:28NONCAPITAL DEFENDANTS GET.
ONCE THOSE CASES LOOK
00:48:33SUPERFICIAL AT THE BEGINNING,
ONCE YOU GET INTO THE RECORD,
00:48:38THERE IS SOMETHING THAT IS
TROUBLING TO THE COURT.
00:48:42WE ARE SIMPLY ASKING FOR THAT
SAME MERIT REVIEW THAT IS
00:48:47PROVIDED TO NONCAPITAL DEFENDANT
S.
00:48:54THERE IS A 34% ERROR RATE.
>> WE WILL TAKE THE MATTER UNDER
00:48:59ADVISEMENT AND YOU'LL BE
NOTIFIED.
00:49:02>> ALL RISE.
THIS OPEN SESSION OF THE SUPREME
00:49:09COURT OF OHIO STANDS ADJOURNED.
Note : Transcripts are compiled from uncorrected captions