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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 > Entry
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
Comments
By Dave
June 22, 2010 10:32 PM | Link to this
Capital punishment is not a deterrent? If you execute someone, they do NOT kill again.
By Kevin S.
June 23, 2010 5:12 AM | Link to this
The deterrent argument is about whether capital punishment is a deterrent to anybody else, and the answer to that question is no. Murders are either a)crimes of passion, in which case people don’t generally stop to reason out whether it’s worth the consequences, or b)acts of arrogant sociopaths who think they won’t get caught like that sucker who got executed. Furthermore, since very few murderers are serial killers, most of them wouldn’t kill again anyway.
By Paul
June 23, 2010 7:15 AM | Link to this
Judge Merz, you are absolutely wrong when you opined, Catholic moral teaching requires individuals to carefully form and then follow their own consciences. The traditions and pontifical letters are what is used for Catholics to form their consciences according to the law of God, not self. Judge Wagner did exaclty that and should step down from a position he is incapable of serving fully.
By J
June 23, 2010 9:50 AM | Link to this
Paul, you’re speaking about doctrine, not practice, ie what is stated happens versus what actually happens. I was raised Roman Catholic (though I am no longer) and what Merz says is accurate. Unless you’re a Roman Catholic, I doubt your opinion is more valid than his. Also, you seem to believe that a judge can separate themself from their experience. It’s one of the myths of the current atmosphere that judges have no personal feelings about a particular subject. Judges have personal feelings about EVERY subject they rule on. It is unavoidable. Those feelings color their perspective about everything. By your logic, no one could possibly be a judge because there will always be a case they feel so strongly about that it unfailry colors their views. NOBODY can escape their experiences and how those experiences have shaped them. Nobody.
By TRS
June 23, 2010 10:44 AM | Link to this
I can respect both Judge Merz’s and Wagnor’s perspectives and I have never had an argument with that. My only concern is that Judge Wagner was aware of the possibility of hearing a murder case and should have made full disclosure to the voters of what he would do in such a case.
By Max
June 23, 2010 8:13 PM | Link to this
Judge Merz makes an eloquent case for Judge Wagner. However, Judge Wagner’s position on capital case recusal was not made known prior to assuming the bench. To argue from the position of recusal grounds is a slippery slope argument for the reasons cited by Merz; this is why Supreme Court nominees are vetted and confirmed. It allows for disclosure on the abilities to uphold the Constitution, fully, and without bias or reserve. Judge Merz’s arguement is commendable but outside the foundations of law; its letter and intent. Wagner’s recusal became what a sitting judge avoids; a political statement - under the umbrella of religious belief - affecting the court in which he presides. That is unpardonable and affects all prosecutors and defense attorneys who appear before him. The effect, according to Judge Merz, is one case. The results, however, is a mockery to the judiciary branch and the ideal reflected in the scales of justice. Accordingly, Judge Wagner should certainly resign.
By Paul
June 23, 2010 9:11 PM | Link to this
J, you are absolutely as wrong as the Judge. A practicing Catholic, at least those loyal to Rome, CAN NOT form their reasoning based on THEIR conscience. Conscience is the not the source of truth but its sensor. Please refer to John Paul II, Conscience and Truth for further info. The individual has a duty to form the conscience based on truth, not emotion. I am a Catholic and Judge Wagner should resign from a position he is unable to perform.
By Max
June 24, 2010 11:30 AM | Link to this
Paul, excellent theological take. I think Judge Wagner’s decision - if we accept his knowledge of law and responsibilities of the judiciary - cannot be spun to be ‘belief based.’ However, Judge Merz’s defense is taking liberties with the oath of office from which a recusal cannot be appropriate in any context. Recusal on inability to apply the laws of Ohio is grounds for dismissal. That Judge Wagner has issues with capital punishment is a matter for the legislature, not the court.