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Ellen Belcher is the Dayton Daily News opinion pages editor. She writes about state government, education, the environment, higher education and all things Dayton.
Martin Gottlieb is an editorial writer and columnist for the Dayton Daily News opinion pages. He focuses on the political process itself and does such national issues as war, the economy, taxes and Social Security, as well as a hodge-podge of local and state issues.Home > Blogs > A Matter of Opinion > Archives > 2010 > June > 22
Tuesday, June 22, 2010
Guest column: Judge was correct to step aside in death penalty case
This commentary was written by Michael Merz, U.S. magistrate judge serving the U.S. District Court of Southern Ohio.
The Dayton Daily News recently criticized Montgomery County Common Pleas Judge A.J. Wagner’s decision to disqualify himself in a death penalty case (“Can judge refuse to hear capital cases?” May 21).
Wagner said he does not believe in capital punishment and, thus, couldn’t decide any case where the punishment could be death. The DDN asked “whether somebody who can’t follow the law should run for a position as a common pleas judge.”
The editorial also asked whether Wagner could have done something short of getting off the case. It quoted Lori Shaw, assistant dean of the University of Dayton Law School, who suggested he could have heard the case, then declared the death penalty unconstitutional.
I have been a judge for more than 30 years and have decided more than 50 cases where defendants challenged their death-penalty convictions. Like Wagner, I am a Roman Catholic. I comment from those perspectives.
The paper opined that a judge must “proceed on a case-by-case basis” and “follow the law.” That’s just what Wagner did. The Ohio Code of Judicial Conduct requires a judge to disqualify himself when he or she cannot apply the law fairly. If a judge knows he or she will be unable, as a matter of conscience, to follow the law, getting off the case is the only option.
It would be wrong, as U.S. Supreme Court Justice Antonin Scalia has written, for a judge to be a “stealth” opponent of the death penalty, presiding in a capital case, then refusing to impose the sentence.
I applaud Wagner’s candor in disclosing his reasons for removing himself. Some courts have a practice of allowing judges to take themselves off a case without giving reasons. That’s appropriate in simple conflict-of-interest cases, but less so when the decision is a matter of conscience. The public and Wagner’s colleagues have a right to know why he cannot handle a particular case.
I don’t agree with Wagner that the death penalty is unconstitutional or with Shaw’s suggestion that Wagner could have made that ruling, either before or after trial.
While every judge takes an oath to uphold the Constitution and has the authority to declare a law unconstitutional when that is an open legal question, Wagner and all trial judges are bound to obey decisions of appellate courts. The Ohio and United States Supreme courts have repeatedly said Ohio’s death penalty is constitutional.
The suggestion by some critics that Wagner should resign if he cannot handle capital cases is extreme. This is the only case in his eight-year career in which he stepped aside for this reason. If a judge could never sentence someone to prison, then it’s time for a replacement.
The Catholic tradition does not dictate Wagner’s conclusion. Although I am of the same faith, I do not consider myself obliged to disqualify myself from death penalty reviews and indeed have asked to be assigned to those cases.
In fact, Catholic moral teaching requires individuals to carefully form and then follow their own consciences.
On the other hand, the Catholic tradition is not irrelevant on this issue. I share Wagner’s belief, informed by that tradition, that all human life is sacred.
If the life of the unborn child is inviolable simply because it is a human life, as so many Catholics and others passionately believe, then the life of the condemned murderer is just as sacred.
Not all Catholics accept that position. But Catholicism is not the lockstep sort of tradition many — both inside and outside the Church — believe it to be.
I agree with many of Wagner’s policy points. Capital punishment is enormously expensive, much more so than even life imprisonment. Whether someone is sentenced to death depends a great deal on where a murder is committed and who the victim is.
Finally, no one has proved that capital punishment has a significant deterrent effect.
Juries seem to be slowly abolishing the death penalty. Only one man was sent to death row in Ohio last year. At the same time, we are preparing as a state to execute about one person a month for the rest of this year. That seems to me to be a public moral anomaly that the public ought to resolve.
Permalink | Comments (8) | Post your comment | Categories: Guest Columns, Law Enforcement and Public Safety, Montgomery County, Ohio government
Martin Gottlieb: Obama looking baffled by backlash against him
2010 ELECTION
Perfunctory. President Barack Obama’s visit to Ohio last Friday, June 18, was by the numbers — in more ways than one.
He wanted mainly to highlight some numbers. The occasion itself was a celebration of what he says is the 10,000th road project funded by his stimulus. And he had numbers about jobs and dollars.
Indeed, in his 13-minute speech there wasn’t much more, except a defense of “investment,” sometimes known as spending.
He said the stimulus wasn’t just about spurring the economy now, but about the long term, too. He cited trains, modern Internet delivery, infrastructure and electronic medical records as realms getting needed investments.
He offered no new argument and no new turn of words, unless you count the White House’s reference to “Recovery Summer,” the name given to a planned six-week campaign around the country that started in Columbus.
Perhaps it’s understandable that he didn’t have an imagination-capturing campaign pitch in this campaign speech. It’s still early. And he has been necessarily focused on certain other matters.
At some stage, though, he needs to come up with something better than statistics. The other side has plenty of statistics, too — about the economy, spending and the deficit.
He has been much criticized for failing to communicate well with the public, for failing to sell his health insurance plan and his presidency generally. Such criticism flows automatically from his sinking poll numbers and the general view that the Democrats are in trouble in November. He’s being called too cerebral, detached, cold — by his friends.
Ultimately, though, the problem isn’t that he’s a bad communicator (where did that come from?), or that he isn’t paying enough attention to his role as operator of the great pulpit, or that he isn’t following the best political advice.
The problem seems to be that he simply doesn’t have a response to the backlash he has fostered.
He gives the impression of not even recognizing it. He keeps talking about his foes as the banks or Wall Street or the insurance companies. Nonsense. They’re not the problem. The problem, obviously, is a populist backlash against big government. Ignoring a problem is a dubious way of dealing with it. So one might reasonably guess that the reason he doesn’t address the problem is that he doesn’t know what to say.
Like most liberal politicians, he is uncomfortable discussing ideology publicly: what’s the proper role of government and all that? The closest he comes is calling himself a “pragmatist.”
Surely he’s on record someplace as saying that the important issue isn’t the size of the government but its effectiveness, that government has both successes and failures and that the trick is to eliminate the failures.
They all talk like that when pressed on philosophy. But they prefer to stick with talk about specific policies they favor.
But the situation now is that Obama’s record — built around big government more than he may have intended before the collapse of the economy — has handed his opponents a neat little message: We want less government!
What’s his equivalent mantra? Surely not a call for more government. Almost nobody really has that goal, no matter how often people get accused of having it. And absolutely nobody believes it is salable.
His problem is certainly not that he’s too dignified or cerebral to have patience for neat little messages. Remember change?
Can that one be revived? Maybe, as a fallback. In 1982, when the economy was in sharp recession and Democrats were calling for change, President Ronald Reagan — just elected in 1980 — said, “We are the change.” Republican losses in the election were substantial, but not huge.
As of now, the Democrats are losing by default the philosophical debate about the government’s future. That portends bigger problems than a bad mid-term.
Even before he focuses on developing a campaign mantra, Obama should give a speech about the role of government. Does he really want to expand it as much as possible? What evidence can he offer for his denial of that charge? How does he see the role?
A charge unrebutted — you are out to increase government — is an awful lot like a charge copped to.
If he’s afraid of a philosophical discussion — this man who’s accused of being too cerebral — something’s wrong.
Permalink | Comments (27) | Post your comment | Categories: Columns, Elections, Martin Gottlieb, National Politics, Ohio politics
