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IN THE COURT OF COMMON PLEAS

LAJ(~l~iiNTY, OHIO
STATE OF OHIO Plaintiff.
vs.

LG1LH.B 28 A~ 11 20
MAU(:~i::;:',~(I~ G~~~i::LLY ASE NO. 11 CR 000321 C
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OPINION AND .JOURNAL ENTRY ) (Motion No.7) ) February 28,2012

JOSEPH L. THOMAS Defendant.

) )

This matter is before the court to address the motion of defendant Joseph Thomas to preclude the sentence brief in opposition,

of death specification (Apprendi Violation) (motion #7). The state filed a Thomas argues that Ohio's death penalty statutes does not allow the grand
in finding probable

jury to consider factors in mitigation than life imprisonment aggravating as an element,

cause that the penalty of death rather

would be appropriate

in his case. He argues that proof that the statutory

factors outweigh the mitigating factors is a required element of the offense and that

it must be found to exist by probable cause by the grand jury. He points out that

no factors in mitigation were presented to the jury and that he was not represented
sel at the grand jury deliberations.

by legal

COWl-

He cites two cases in support of his motion: (1) Apprendi v. against

New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)~ and (2) Ring v. Arizona, 536
U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). This court notes that the indictment

Thomas includes four counts of aggravated

specifications pursuant

murder with each

COlU1t

having six death penalty any

to R.C. 2929.04(A)(7).

Apprendi stands for the proposition that "[0 [ther than the fact of a prior conviction,
mitted to a jury, and proved beyond a reasonable doubt. 177 Ohio App.3d

fact that increases the penalty for a crime beyond the prescribed statutory maximum must be subApprendi at 490. See, also, State v. Hill,
In Ring, the U.S. factors must be determined by a jury doubt.

171, 2008-0hio-3509,

894 N.E.2d

108, ~ 63 (11 th Dist.).

Supreme Court held that the existence of such aggravating

(not solely by the trial judge) and proven beyond a reasonable

defendant for aggravated murder with death specifications.

Ring at 602. Neither case

holds that a grand jury must consider mitigating factors before finding probable cause to indict a

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Under Ohio's unanimously

statutory scheme, the death penalty may only be imposed "[I[f the trial jury doubt, that the aggravating circumstances the factors."

finds, by proof beyond a reasonable

offender was found guilty of committing Dist. No. 2007-T-OI05, 2008-0hio-3257,

outweigh the mitigating

State v, Williams, 11 th
The Ohio Supreme under Ring or

~ 41 citing R.C. 2929.03(D)(2).

Court has held that this procedure There is no requirement no case law indicating

does not violate the Sixth Amendment

Apprendi. Id., citing State v, David, 116 Ohio St.3d 404, 2008-0hio-2,
to submit mitigating otherwise.

880 N.E.2d

st, ~ 188.

factors to the grand jury and Thomas has provided

This court also notes that there are practical impediments to a grand jury.

to presenting mitigating
2007 WL 2902908

factors

See, U.S. v. Galan, N.D. Ohio No. 3:06CR730,

(Oct. 2,

2007). Among these are problems in an ex parte proceeding

might view as mitigating. Even if some defendants jury to present such evidence, government's defendant view.

in discerning

what the defendant

desired and were able to go before the grand

grand jury procedure questions.

others might prefer to keep their case in mitigation hidden from the by bringing the
It also raises additional Could the defendant

It would also greatly alter conventional

into the grand jury room.

bring counsel with him? pert witnesses?

Could the defendant

present or summon witnesses?

Could they be ex-

Perhaps more fundamentally

- how often is the target of a grand jury considering

capital charges likely to be aware of that fact? The grand jury is, moreover, sible defenses. possible The government, in the business of finding probable cause, not assessing posevidence about a

therefore has no obligation

to bring favorable

defendant

into the grand jury room.

See

u.s.

Williams, 504 U.S. 36,47,

112 S.CT.

1735, 118 L.Ed.2d 352 (1992).

jecting claims of prosecutorial grand jury).

See, also, U.S. v. Angel. 355 F 3d 462, 475 (6th Cir. 2004) (remisconduct based on failure to present favorable evidence to the
which can only reduce, rather and mitigating factors does not facIn ad-

In summary, Apprendi and Ring do not apply to mitigation, than increase the sentence. The process of weighing aggravating

involve fact finding. so proof that the statutory aggravating tors is not an element of the offense requiring dition, there are serious and substantial operation of the grand jury. is denied. Defendant

factors outweigh

the mitigating

a probable cause finding by the grand jury.

practical concerns relating to the historic function and Joseph 1. Thomas' motion to preclude the sentence of

death specification

IT IS SO ORD.ERED.

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Copies; Charles F. Cichocki, Esq., Assistant Lake County Prosecuting Attorney Charles F. Grieshammer, Esq., Chief Assistant Lake County Public Defender David Doughten, Esq.

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