OACDL Lawyer of the Year Award
The OACDL Lawyer of the year award is an award given by you to one of you. It is an annual award that is given by you to a member in good standing who best lives up to the ideals and values of this association. Its recipient receives an award that means more than any other because it comes from his colleagues who appreciate the quality of his work and contributions to our profession.
None at this time.
Ohio Association of Criminal Defense Lawyers
Donald C. Schumacher Lifesaver Award for Excellence in Death Penalty Litigation
Don Schumacher, a long time criminal defense lawyer in Columbus, lost a long battle with cancer in September of 2007. At the time of his death Schumacher was President of the Ohio Association of Criminal Defense Lawyers.
Among his many achievements as a criminal defense lawyer, Don was most proud of his achievements and record in capital trials. Only one of his clients was sentenced to death out of approximately thirty trial level capital cases. Don shared his knowledge and experience with other attorneys, organizing death penalty seminars for OACDL and speaking regularly on death penalty and criminal law topic throughout the state. Don as was also a tireless promoter of OACDL - constantly encouraging attorneys and others to become members of OACDL.
To honor Don's long service to the OACDL and to recognize his significant contributions to the defense of indigent defendants facing the death penalty and his services in teaching the criminal defense community about the latest ideas and techniques, the OACDL has created the DONALD C. SCHUMACHER LIFESAVER AWARD for Excellence in Death Penalty Litigation. This yearly award is designed to recognize outstanding achievements in avoiding imposition of the death penalty through trial excellence, mitigation investigation and presentation, as well as appellate and post-conviction litigation, and education. The Schu Award will recognize significant achievement in a given year as well as lifetime achievement.
2011 Lifesaver Award Recipient - John Parker
2011 DON SCHUMACHER LIFESAVER AWARD
EXCELLENCE IN DEATH PENALTY LITIGATION
My Pal Parker (presented by David Doughten)
John Parker was born and raised in tropical Belpry, Ohio, located on the north-cental side of the mighty Ohio river. He spent his youth playing baseball in the city, chasing errant throws between the chemical plants located along the river. He attended undergrad at The Ohio State University (it was known only as Ohio State back then) and law school at Case Western Reserve University in Cleveland.
I first met John (hereinafter Parker. Most of his friends do not know that he has a first name) when he became a law clerk in the Cuyahoga County Public Defender Office too long ago to admit. He was a 135 pound left fielder (he says 125, but I am skeptical) with a good glove but not much power. He clerked at the defender office for a couple of years before becoming a staff attorney with the general trial division. It was there, in the infancy of Ohio’s death penalty litigation, that Parker began to hone his skills as a capital litigator.
John tired of government work after a few years. Needing only to feed his beloved dogs Foster (named after the beer) and Crosley (he is a die hard Reds fan), he took the plunge into private practice. He set up shop in a back office of a 120 year old building under repair, renting from slum landlords (me, for one). Ducking the water dripping through the walls and ceiling when it rained (you get what you pay for), Parker somehow managed to build a practice.
Working solo, Parker used his defender experience to become quite skilled in all facets of capital representation; trial, direct appeal and habeas litigations. He represented numerous clients on direct appeal, preserving issues that lead to later victories in federal court (eg., Wiley Davis) and achieving the almost impossible task of convincing the Supreme Court of Ohio to reverse on a Brady claim (Vernon Brown). Both clients later resolved their matters without a death sentence. Therefore, these were more than pyrrhic victories.
Although not a regular campaign contributor to judicial candidates, Parker nevertheless managed to try two capital cases to an acquittal in Cuyahoga County over the years. His growing reputation with at least some of the court lead to his being appointed to the Anthoney Sowell serial killer trial this past year, also in Cuyahoga County. Parker was able to convince the trial court to at least come close to providing for his experts. The judge took a lot of heat for this. As the result, Parker and co-counsel Rufus Sims were not paid for the last eight weeks of trial, as the budget was said to be tapped out. Of course, they were not told that they would not be paid until after Sowell was sentenced to death.
Despite the uncertainty of his being paid, Parker and Rufus provided Sowell as good of a defense as could have occurred under the circumstances. In the face of extremely heavy median coverage, the defense again and again challenged the state’s presentation of evidence and challenged the court and prosecutor to meet constitutional standards in the state’s attempt to convict and sentence Sowell to death.
Parker is appealing the denial of attorney funding to the Supreme Court of Ohio, again placing himself in the forefront of litigation on an issue which will benefit us all. This would not be the first time he took such a risk. Parker and Tim Sweeney were main players in the lethal injection §1983 challenges before Judge Frost. The two cris-crossed the state, taking depositions in discovery to set the foundation for the litigation which remains in litigation, again with no assurances of being paid.
The key to Parker’s success is his ability to think outside the box, or maybe it should be stated as his inability to think inside the box. That is a benefit rather than a liability in this business. On many a day or evening I would receive the "does this pass the laugh test" call from him. Many times it did not. But more than once it did.
On one such occasion he related that he had been discussing an off-the-wall issue with Kort Gotterdam at a party. He had seen an obscure case which seem to indicate that a jury waiver was not valid if it were not filed with the clerk of court before the commencement of trial. Kate McGarry and I were working on a jury waiver case. We checked, and sure enough, the waiver had not been filed. So what the hell, we threw it in the brief of State v. Carroll Dean Pless, who was on death row. We actually argued over who had to raise the issue at oral argument. I won. Kate argued. Carroll Dean Pless won and was given life after a new trial.
Congratulations Parker. No one could be more deserving of the Donald C. Schumacher Life Saver Award. Keep thinking out to the box. It is what makes you so good and helps all of us help our clients.
2010 Lifesaver Award Recipient - David Doughten
2010 DON SCHUMACHER LIFESAVER AWARD
EXCELLENCE IN DEATH PENALTY LITIGATION
This year’s award goes to David Doughten of Cleveland.
David has been practicing criminal law in Cleveland since 1981- originally as a public defender. He has been in private practice since 1987.
David Doughten first appeared at a death penalty seminar in 1982 when he was working at the Cuyahoga County Public Defenders Office. He worked on the Leonard Jenkins appeal, one of the first two death penalty appeals under the 1981 law. The other was Donald Maurer. Both were argued on Halloween of 1984 and decided by the end of the year. Both had terrible results and became the template for a lot of very bad caselaw from the Ohio Supreme Court.
Since that time, however, David has worked successfully on capital trials, capital appeals, capital post-conviction cases, and capital habeas cases as well as clemency and has unfortunately attended a couple of his client’s executions.
David is a frequent speaker at criminal defense training seminars. The topics range from jury selection at trial, motions practice, appellate updates, and habeas training. He has spoken frequently at the OACDL death penalty seminar as well as the state bar seminar.
He has become a sought after litigator by many judges in Northern Ohio – for his trial abilities and his ability to resolve terrible cases and for handling difficult clients.
Most recently he was the trial attorney in Neil Simpson in Lorain County – the classic “difficult client” that David spoke about at this seminar. Simpson alienated his family so that they would not testify at mitigation and when approaching the bench to make an unsworn statement, ran over to the jury box and spit on them and yelled at them for finding him guilty. Despite that, Doughten was able to convince the jury to return a life verdict. Simpson nevertheless asked to be crucified or stoned to death at sentencing. The judge declined. He has been described as creative and persistent and able to resolve the big cases when it is appropriate and try the big cases when that is appropriate.
In introducing David at the seminar, Jerry Simmons, told the story of how a close friend of his found herself in serious legal difficulties. Because of their closeness, Jerry did not feel he could represent her. He asked David Doughten to take on the representation. As he noted there is not higher tribute that a defense lawyer can give to another defense lawyer than to ask him to represent a close friend facing serious criminal charges.
Among his many legal accomplishments, David Doughten has successfully tried Susan Gribben in Tuscarawas County, gaining an acquittal by jury of killing her four children, 1996. He successfully negotiated a plea for Thomas Lee Dillon, serial killer (hunter in woods) plea to life, Noble County, 1994. He also tried to a life verdict the case of Thomas Galan, the first indicted federal death penalty case in Northern District of Ohio. He has had numerous other successes in Cuyahoga County and across northern Ohio. His appellate, post-conviction, and habeas successes have included getting relief for Donna Roberts, Fred Dickerson, Shawn Williams, Dorion Hill, Kenneth Green, Carrol Dean Pless, Tyson Dixon, and Sterling Barnes (the only capital defendant to get post-conviction relief since 1981).
David Doughten has made significant contributions to capital defense and the training of capital defense attorneys for the last twenty-five years. He is deserving of the Don Schumacher Lifesaver Award for 2010.
2009 Lifesaver Award Recipient - Karen Roberts
2009 DON SCHUMACHER LIFESAVER AWARD
EXCELLENCE IN DEATH PENALTY LITIGATION
Karen Roberts has been a social worker/mitigation specialist with the Franklin County Public Defenders Office since 1983 - back in the days when we had little idea about what mitigation was all about. Without any fanfare or official recognition Karen has devoted her lengthy career to assisting attorneys save the lives of their clients in increasingly difficult situations.
Since then Karen has been involved in the investigation and preparation of mitigation in 72 cases - mostly for the Public Defenders Office, but also in at least 10 cases where she worked for private counsel assigned to the cases. In 18 of those cases, the client was convicted at trial and went to a penalty phase trial where the issue became whether sufficient mitigation could be presented to convince the jury to impose a life sentence. In all 18 of those penalty phase trials, the jury returned a life verdict. This is a remarkable record. 18 and 0.
Of equal importance to winning all 18 of the penalty phase trials, is the number of cases that did not make it to a penalty phase trial. 54 of the 72 cases were resolved short of a penalty phase trial - most to pleas before trial. As you all know (or should know) the development of compelling mitigation is often the final element that pushes the prosecution into a plea agreement for a life sentence. Karen's work in investigating and developing mitigation has been instrumental in forcing cases into pleas.
Franklin County has become a very difficult place for the state to obtain a death sentence. The prosecutor seldom takes cases to death penalty trials because death verdicts are so rare. Much of this is due to the high standard of practice that has ben established by the trial bar in this county. Karen's work has been instrumental in permitting the trial lawyers - both at the Public Defenders Office and the private bar - to have an extra bargaining chip in resolving potentially capital cases short of trial. Franklin County juries no longer return death verdicts - so why bother going through the motions.
A couple of examples of Karen's successes: Toby Wilcox and co-defendant broke into drug dealer's apartment, killed him, shot his girlfriend several times, and shot off half the head of her 1 month old baby. Ugly facts. Wilcox was from a gang-infested area outside of Chicago. Family from Chicago area but had moved on (or were in prison) Karen accumulated every conceivable record and eventually got through to his mother and developed a relationship with her. Mother, and ex-girlfriend (and her small son) appeared at the penalty phase and ultimately swayed the jury to impose a life sentence. The lawyers praised her "highest degree of professionalism" and her "extraordinary efforts were instrumental in saving Toby's life."
Quarran Covington - charged with killing his best friend and the friend's best friend who had driven in from Atlanta for a drug deal. Both were shot at point blank range. Karen collected all of the records and in reviewing the records - discovered a teacher/football coach that had befriended Covington in the 9th and 10th grades. The teacher was convinced to come and testify at the penalty phase and make a compelling case for life with otherwise relatively thin mitigation in a bad factual case. "The verdict would not have been possible had Karen not dug through this guy's background to find something helpful and then continue to work with counsel through to the bitter end."
We all know that the difference between a jury's recommendation of life or death is complex and dependent on many factors. To the attorneys who have worked with Karen, the results have depended on the hard-work and diligence of Karen Roberts in digging up the records, in finding the family and friends who can bring some positive mitigation forward in even the worst cases. The attorneys in Franklin County have come to rely on the diligence and creativity of Karen Roberts.
So in the somewhat short tradition of this award, it is only fitting that we present her with this year's Don Schumacher Lifesaver Award for her long term and ongoing efforts in saving the lives of so many Franklin County defendants and in making Franklin County so intolerant of death verdicts.
2008 Lifesaver Award Recipient - Jerry Simmons
Gerry Simmons has been a practicing criminal defense lawyer for nearly forty years. During the last twenty-seven years since the death penalty was re-enacted in Ohio, Gerry has become one of the leading - if not the leading - death penalty defense lawyers in Ohio. He has traveled outside of Columbus to try cases all over the state. At one time he had a whole office full of attorneys who were willing to travel and try these cases.
Gerry is legendary in local courtrooms for his tenacity in making a point and in representing his clients. He is fearless. Few things that occur in a courtroom miss his attention - or his objections - and his objections are tenacious. Every point is argued and every point is re-argued until the point is won or the record is clear - or the judge and prosecutor are worn down.
Gerry is well respected on both sides of the aisle. At a recent event in his honor I was amazed at the number of prosecutors and judges who attended - at tribute to the respect that he has earned in the legal community.
But this award is in recognition of his death penalty work.
I was fortunate to first meet Gerry back in 1982. I was working at the State PD's Office. Young - trying to learn how to do capital trials. I was able to work on consulting on a local case with Gerry as well as his good friends - and also legendary lawyers - Gary Schweikart and Jim Kura. The legal thinking among those three was astounding.
Later, I was fired by Jeff Thompson in an ugly case in Licking County. Randy Dana suggested that we get Gerry to take over that case. Over the next year I watched and learned by watching Gerry handle Judge Neil Laughlin, the prosecutor, and Jeff Thompson. Ultimately the jury sentence Thompson to death, but it was reversed on appeal - based on an objection Gerry made to the prosecutor's closing argument and to the admission of gruesome crime scene and autopsy photographs - projected on a screen in the courtroom.
During voir dire in that case, Judge Laughlin got down off the bench while Gerry was conducting individual voir dire and came and sat next to me in the audience to talk about Gerry's performance in voir dire. He just let Gerry run the courtroom during voir dire.
Several years later, Gerry and Lew Williams tried an ugly death penalty case in Perry County. Their outsider clients were charged with killing two local folks at a campsite. Strong local prejudice against outsiders. Jury verdict of not guilty on all counts. Practical riot in the court house. Gerry and Lew had to take refuge in chambers and eventually be escorted out of the county by the Sheriff.
The most recent case I worked with Gerry was John Parsons - in Ross County. Parsons was charged with shooting a beloved off duty police officer while fleeing from robbing a gas station. Community outrage. John then escaped from the Ross County jail - and was on the run for 84 days. You all saw pictures of police officers with dogs out in the 95 degree summer tromping around the woods looking for John.
Despite that and despite his lengthy tearful admission to shooting the police officer at the time of his original arrest, we were able to work out a plea for life without parole plus. Not attributable to any brilliant legal tactics on either of our parts.
At the plea and sentencing hearing, the courtroom was packed, not only with the victim's family members but hundreds of uniformed and plain clothes officers from all over the state and country. The plea had been kept secret until the last minute. No one knew of the "statement" that John had made. It was a remarkably tense scene.
Gerry stood up and made a passionate plea on behalf of John - based almost entirely on John's own words in his confession. He managed to speak John's words in John's voice without making John try to do it again - which he would not have been able to. Very moving.
There are hundreds of other cases and stories. But I really want to focus on Gerry's contributions to the art and science of voir dire in capital cases and to teaching the rest of us how to fight for individual voir dire - how to conduct voir dire either individually or in a group - and how to assess the jurors and intelligently exercise peremptory challenges.
Watching Gerry conduct voir dire is remarkable. He carries on a conversation with the juror as if they are old friends. Yet there is a pattern and plan to the questioning so that at the end you have a relatively complete picture of the jurors and which will be better than others for your client. It is a great process. I have conducted several voir dires with Gerry and learn more every time.
Gerry has also been willing to share his knowledge and expertise with the rest of us. He has taught at many of these death penalty seminars. He has taught voir dire procedures at criminal law seminars throughout the state and country. When Arizona was told a few years ago that it could not leave death sentencing entirely up to the judges and that it had to have jury sentencing, they asked Gerry to come out and teach them how to conduct voir dire in a capital case and what to look for in a jury in a death penalty case.
Gerry has also been instrumental in developing the juror questionnaires that most of us use as well as the juror assessment forms that are critical to evaluating the jurors.
Gerry has also been willing to meet individually with lawyers to assist them in preparing to conduct voir dire - as well as to try the case. This is an immeasurable assistance to young or less experienced lawyers facing trial in a death penalty or any other criminal case. As we have seen over the years the most important part of a trial is selecting a good jury.
For all of these reasons - and for Gerry and Kathy's not inconsiderable contributions to the mental health of the criminal defense community of Franklin County and Ohio by opening their home to our relaxation and entertainment - I would like to present the 1st Don Schumacher LifeSaver Award to Gerry Simmons for his lifetime commitment to and achievement in death penalty defense.
A. Trial and Mitigation: Recognize significant achievement in avoiding the imposition of a death sentence at trial either through plea negotiation or acquittal of aggravated murder or the capital specifications at trial or through the development and presentation of mitigation at trial or in the plea process in a given year.
B. Trial and Mitigation Developments: Recognize the discovery and/or development of new and creative strategies for defending a capital case and/or for mitigating a sentence of death and educating the defense bar about the new strategies/developments in a given year.
C. Appellate/Post-Conviction/Habeas: Recognize significant achievement in obtaining relief for death row inmates on appeal, in post-conviction, in habeas, or through clemency in a given year.
D. Education: Recognize significant accomplishments in presenting new and creative litigation strategies to the criminal defense bar through the OACDL seminar or otherwise in a given year.
E. Lifetime Achievement in the defense, mitigation, or appellate/post-conviction/habeas fields or in the education of the defense bar in capital litigation.