In this episode of Common Sense Ohio, we discuss the complicated and political nature of the criminal justice system. We question the practicality and morality of the death penalty and highlight the risk of wrongful convictions.

We also discuss challenges in determining guilt in cases involving child sex crimes and emphasize the importance of individual responsibility and consequence.

Guest Paul Scarcella, who has worked on many homicide cases in Ohio, joins the conversation to discuss a new unit that offers experienced prosecutors to smaller counties for free.

Overall, this episode provides insightful commentary on the flaws and complexities of the criminal justice system.

Stephen Palmer is the Managing Partner for the law firm, Palmer Legal Defense. He has specialized almost exclusively in criminal defense for over 26 years. Steve is also a partner in Criminal Defense Consultants, a firm focused wholly on helping criminal defense attorneys design winning strategies for their clients.

Norm Murdock is an automobile racing driver and owner of a high-performance and restoration car parts company. He earned undergraduate degrees in literature and journalism and graduated with a Juris Doctor from the University of Cincinnati College of Law in 1985. He worked in the IT industry for two years before launching a career in government relations in Columbus, Ohio. Norm has assisted clients in the Transportation, Education, Healthcare, and Public Infrastructure sectors.

Brett Johnson is an award-winning podcast consultant and small business owner for nearly 10 years, leaving a long career in radio. He is passionate about helping small businesses tell their story through podcasts, and he believes podcasting is a great opportunity for different voices to speak and be heard.

All right, here we are, June 2nd. That's 6-2 for those who like the numbers instead of the names. Norm, is that you? You like the numbers instead of the names? Hey, man, I just love everybody. I don't care. What's your racing number?

Depends on the car. I like to go with 66 if they have that number available, because my hero ran that number, Mark Donohue, back in the 60s and 70s.

Got you. Well, if those haven't figured it out yet, this is Common Sense Ohio coming at you from Studio C here at 511. Common Sense Ohio, what's that about? Well, if you don't know already, you should, because we are, I guess we're burning up the airwaves, Brett, we've got people in Dayton that say everybody listens to Common Sense Ohio. So what we're asking you to do is like and subscribe. So what does that mean? That means like and subscribe. Go to wherever you get podcasts, download it, like it, subscribe to it, and then tell your neighbor because he'll like it or she'll like it and then she can do the same. We like to come at the news world with a common sense approach from Ohio that is right from the middle. You see the pun right from the middle? Yeah. All right, we got Norm. It looks like you got the racing stuff in the background.

Oh, yeah. This is my racing RV, the GT 140. 140 inches from the ground to the top of the air conditioning shroud. And that's how Carol Shelby named the the race car back in the day. The GT40 was from the ground to the top of the roof. So I renamed my RV the GT140. And the Shelby people have had a cow over that. All equipped, I've got a 24 foot trailer, 2 racing shells, I'm bringing back to Ohio in a race motor. So

Hey,

I'm proud. All right, He's proud of his, how tall is your rig?

140 inches.

All right, he's proud of that. Now, I had a murder case down in Hocking County last fall and the attorney generals were prosecuting that and I sort of got the sense that it was because it's a smaller county they don't have like dozens of employees and investigators etc is that sort of the deal? That's what it was you know when you get a capital case especially in a small county it can eat up an entire prosecutors office between the motions that get filed the investigations that need to get done, all of the pretrial litigation that goes on on a death penalty case with a 1 or 2 attorney office, it can kill the whole office. And county prosecutors are responsible for representing all the townships in the county, they're representing all the county agencies, so the sheriff, children's services, child support. So to have 2 or 3 attorneys and throw a death penalty case in, it becomes an absolute nightmare. First of all. So it sounds like my practice. Or mine now that I'm a private practice. It's like, I love it because the state, the prosecutor's office is like, no, we can't handle that. We only have like 4 prosecutors and we only have a few support staff, so we can't handle it. It's like, all right, I have 1 or 2 lawyers and a part-time staff, yet I'm expected to defend the case. Absolutely. All right, so there's a bunch to talk about with death penalty stuff. You know, you have like the moral side of it, you have like the practical side of it, and then, you know, when should we apply the death penalty case? What is the constitutional side of it? It's a huge discussion, and you know, people think that because I sort of tack a little bit conservatively, that I'd be all in favor of the death penalty. And that's not necessarily true. I mean, I've got my reasons for not being in favor of the death penalty. But why don't we just start there? Like, Norm, What do you think about the moral side of the day? I mean you and I have probably had some drag-ons about drag out fights about this But you know, there's this old notion of eye for an eye tooth for a tooth Let's just somebody kills me or kills my loved 1. I want to kill them

I suppose he has the power to. Is that true? I didn't know that. There's not been an official hold. What they're saying is we can't find the drugs necessary

to effectively do it.

So they're not actively seeking it. They're not seeking different methods of imposing the death penalty. There is an unofficial moratorium. The wine's not going to come out as a Republican and put a moratorium on the death penalty in the state of Ohio. That's just not gonna happen. But he's gonna say other things like, well, we just can't find the drugs that we need. Because manufacturers don't wanna back it, be a part of that. Right, because many of the officers are like, we're not gonna sell it to you if you're gonna use it for the death penalty. And there are other states that have gone and like, okay, we can't get the drugs, so we're gonna go to the firing squad, or we're gonna bring back the electric chair. Things that the Supreme Court have said is not unduly painful to the defendant who's being executed. Dwyane hasn't picked that fight. The legislature in Ohio hasn't even thought about doing anything other than, I think there's legislation now to do away with the death penalty in Ohio that's pending in the Ohio legislature right now. But there's no official moratorium. We just can't find the medication that we need, is what they're saying. There's enough fentanyl laying around, if they really wanted to get it done, they could probably get it done. I mean, look, I've got them. Yeah. Yeah, exactly. Yeah. So what to add, so, go ahead. Steve,

just to finish that thought. So you and I had an extended discussion on a previous show about how, how as, as the, as the person on death row awaits a final, you know, their, their execution date, all this time goes by and that person in some cases becomes a very different person than the 1 who committed the crime and there is great human tragedy and human loss if a person goes into prison, some kind of hardcore criminal or a person who, you know, lost their marbles or whatever. And then while in prison, they convert into, you know, a useful and productive and contributory person. And so I guess on the death penalty, if we're gonna use it, we need to be 100% sure. And then we need to do it a little bit more, I don't mean fast, but it can't be 20 years, it can't be 15 years. I think that's cruel and unusual, not only to the victims' families and to the rest of society, but you know, to allow a person to grow and become a completely different person than say they were when they were 24 and now they're 60, that's to me, then I don't want to put that person to death, you know, because it's a changed person, a different person. So my opinion is, yeah, there is a place for the death penalty but all of this, all the machinations in court, all the triple and quadruple chances to prove things and gum up the works, to me, makes it not only not a deterrent, but undesirable. So that's my take on the morality.

to the public, this is why we're doing this. So it's understood.

So there's a conscious going on here. It's like, we're not just doing it not to do this. It's like, we're gonna save this 13 year old from agony again, but you don't get the opportunity to talk about it. And another perfect example of how the politics plays into every decision that we make. Olivia, my partner and I were trying a case not too long ago in a neighboring county. I don't want to call anybody out specifically, but we're in a neighboring county and we're trying to get this case resolved as the jury is waiting to come in. And it's a, for that county it was a high profile case, whatever, it was a homicide, they don't get many of them. But the judge made mention of, look, if I do this, your boss, pointing at the assistant prosecutor, is gonna blast me all over Facebook, and ethically, I'm not allowed to say anything back to her. Because if he did something where it wasn't life without parole or something like that as the sentence, she was gonna go off on the judge because as a prosecutor, she can. As a judge, he's bound ethically that they can't. All of those factors weigh into every decision, but nobody wants to talk about how prevalent those decisions are these days. And that's what's the root of the issue with the criminal justice system. Yeah, we had a judge recently, and I'm not gonna mention the county or who or what, even gender, but this judge imposed prison on a case that the prosecutor and the defense were both recommending probation or community control. And the judge says, well, I just don't see this as a community control case. I don't see this, I don't see that, I don't see that, and listen to some other factors. And looking back, it was an inherently political decision for reasons that maybe there's an election year or maybe there's some higher aspirations. And you know, judges don't want to be out there and criticized when their jobs depend on the voters any more than prosecutors do, any more than any other politician does. And I'm not saying that makes this person bad, I'm just saying that makes the system a little bit flawed inherently. And I think, not calling anybody out or bad, it's just the way the system is perceived these days, okay? People don't understand what goes into it. You and I, the case you mentioned about how we first met was in Delaware County. We can talk about it because it was 100 years ago now. The judge had a sign on his bench that said, I don't care how they do it in Franklin County. Okay? But that was the exact same thing. You and I, as the attorneys on the case, had worked out a deal. We had worked out what we thought was an appropriate resolution. And he told us off the record that he was good with it. That he was gonna go along with it. And then as soon as we go in to go on a record, he jacks it all up and doubles the time and was just a mess. But it's hard to get people who read a headline and scroll through or to just look at a tweet and don't pay any attention to understand all of the different things that go into these decisions and how this system has become a political animal just like everything else in this country. And that makes it much more difficult to navigate through for the lawyers, for the prosecutors, for the judges, for the defendants, for everybody, because it's not just about what the statute says today. Yeah, it's not about what the court said, this is how we interpret the law today. Everything has to play into that, and it becomes much more complicated, I think. Well, I'm gonna change direction here a little bit, Norman, get back to something you said, because it was interesting to me. You brought up a concept, I'm gonna call it redemption, where you get a guy on death row. And if it were yesterday, you'd want him dead. But then 15 years goes by, you know, he's legitimately redeemed himself, say, maybe found God, maybe helped dozens and dozens of dozens of other inmates in the prison system, has done everything you would want a model citizen slash prisoner to be, and now you have to go flip the switch on old Sparky and fry him or, you know, start the poison or do whatever you're going to do. Like, how, it's difficult for me to square that 1 either. It's like, it's easy to kill somebody when they're right after they did a bad act, but it leaves no room for redemption later. What's your thought on that, Norm?

Yeah, well, you can never know immediately after the crime, during the course of the trial, what that person may or may not eventually redeem themselves, how they would do it, if they would do it, whether it's sincere or whether it's an act. The whole idea of recidivism is an interesting mine to dig through. But on death row, there's no question that some people are completely different after 15 or 20 or 25 years. And they have value to society and the victim's family may even support not putting that person to death.

Who knows? It's sort of like the 24 hour rule, right? If I get an email that pisses me off, I wait 24 hours to respond, you know? It's like, because my initial response is usually bad. It's usually more like, go screw yourself, and it's snotty and it's inappropriate.

However, I don't think using the death penalty in a situation, you know, take John Wilkes Booth, okay? He walked up behind Abraham Lincoln, you know, blew his brains out, jumped off the balcony, you know, made his little speech on the stage and ran out with a broken leg. And so basically it was, you know, the 19th century version of having it on film. Okay, a whole theater of people saw. Okay, so

so they hung those people. I mean, I, you know, I'm not saying You said that you made up you bring up a good point, but you're also suggesting something else here because they hung those people, they didn't just hang Booth, they hung a bunch of other people they classified as co conspirators without a whole hell of a lot of proof. Right. It's like it was more like a like mob justice at that point. It was angry justice.

My point is whether the other people should have been killed or not. My point is simply that it didn't languish forever in some kind of purgatory, legal purgatory, waiting for various machinations to occur. Okay. If Booth had been caught and Booth had been executed in real time, okay, which he certainly would have been back then, right? Who cares what John Wilkes Booth would have turned into had he been put in prison instead for 25 years. And you know, the point is he committed the crime. It was outrageous what he did. There was no doubt about his guilt. It's eye for an eye. And you can't say, you can't say that putting people to death in real time is not a deterrence. The reason the death penalty is not a deterrence, in my opinion today, is because the gangbangers, the murderers, the arsonists that burn down a house with people in it, et cetera, et cetera, They don't get put to death quickly. And so people who maybe have the same intent to commit the same or similar crime don't feel like It's going to happen to them because it didn't happen to this other guy.

I could not disagree more with that. I know that. I know that.

But we didn't kill Jeffrey Dahmer,

who was eating people, right? He wasn't put on death row. Nor was Jeffrey Dahmer ever deterred or would ever be deterred by a death sentence on anybody else.

But my point is somebody else, OK, who might have some kind of sick idea to do something similar. If Jeffrey Dahmer had been tried, given the death penalty, and it was carried out within a year or 2, right, I believe it would have a deterrent effect on some other people. But not

20 or 25 years later. I don't think it's a deterrent at all. It is strictly vengeance. And there's nothing wrong with that. You just have to admit what it is. Yeah, it's all vengeance. Yeah, it's all vengeance. Because these people don't think they're getting caught. These people are narcissistic lunatics who don't think that the law applies to them. And if the law doesn't apply to them, what happens to somebody else is completely irrelevant. And, or it's a crime of passion that happens in an emotional rage. Anybody, I don't think, I don't think everybody who commits a murder is a narcissistic lunatic. Well, the ones you mentioned, I think are. Yeah. Yeah. Right. But I think there are, you know, there's other cases, uh, you know, John Wilkes Booth. I think what, I think what we have when it comes to as many murders as I've worked, I've come down to 1 basic fact of all of them. Nobody goes into that. I don't believe with a clear head. I've, I've, The decision to take another human life, there's some kind of snap, there's some kind of break with reality. It may be a momentary break, it may be whatever, but when you make that conscious decision to take another human life, unless it's in combat and there's a much different situation, but if we're talking about because somebody scuffed your pumas at the strip joint and you decide to shoot him, or because, you know, somebody made a comment about the way your wife looked, so you shoot him, or whatever the reason being, or you decide that, you know, I don't want to go back to prison, so I'm going to line these guys up on Craigslist and take all their stuff.

Well, Paul, hold on. What about people like James Earl Ray or the people who blew up the girls in the basement of that Baptist church? When you have a racist motivation,

there's some break with reality at that point in time. Because if you think you're gonna go kill a bunch of girls in a church, and that's somehow gonna make you a better human being, or you can kill them because they're not human, that's not a rational thought. Nor is it a thought that's gonna be deterred by punishment of somebody else? Exactly. And that's the point. It doesn't matter what anybody else is going to happen because I'm going to go do it because it's still the right thing. That's my opinion is they, the capital punishment and even sentences to prison, I don't think are deterrent to anybody. I agree. And even Booth, you mentioned Wilkes Booth, but you also in the same, you know You were also saying back in those days the death penalty was immediate. You still had lynch mobs and I think anyway and He still did it You know, he wasn't deterred at all. He believed He believed he was killing a tyrant and he was doing, you know, he thought he was doing the Lord's work, you know, 6 temper tyrannous or whatever. I just have not seen in my practice representing folks charged with crimes in my own life experience. I don't think the punishment is a, is a deterrent. I think that those of us who have rational mindsets have a God-given gift of morality, and we understand what it is, and we know when we're doing wrong, and we don't do things that are wrong because we know they're wrong. And then, you know, you can draw the line at things like speeding perhaps, but then there's still a level where speeding is too fast and you know it's wrong. So it is- Steve, that's a,

I'm sorry, but that's logically troublesome to me. I think it's a fallacy to, you're asking to prove a negative. You have no idea how many people have been deterred. Now you have a hunch that nobody would have been deterred, but How many guys have laid in their bed, looked at the ceiling, right? And I don't necessarily mean narcissistic guys or guys that are, you know, diagnosed as crazy or schizophrenic or something, but I'm sure there are several men, several women, have laid in bed next to their partner, looking at the ceiling and wanted to murder them, right? And but for the idea that they're gonna go to prison and but for the idea that they may believe in God and that there's judgment in the afterlife and maybe even the death penalty waiting for them. They don't do it. Now, now you may say, you may say, Hey, Norm, I think that's a full of crap and you're wrong, but you have no way of proving that You're right. And I guess I don't have any way to prove I'm right. I mean, I'm mostly right all the time. I agree. So now it's a good point. That's a good point. I'm pretty damn sure that I'm pretty damn sure that the various penalties for committing crimes are a deterrent.

The death penalty is 1 of those penalties. I would say this, when you just listed the set of circumstances that would have deterred you from killing your, I mean the other guy from killing his wife, see what I did there. It would deter somebody from killing their spouse. You mentioned among the things, morality, God, judgment. And to some extent, that is morality is a deterrent. If you feel like there is a greater judgment, it's not what the punishment is going to happen here on earth with our justice system, but rather what might happen to you in the afterlife. Well, maybe it's both. Or what it might be to just be a human. I think that's kind of where we're... What I think is a deterrent is not necessarily that, you know, the sheriff justice is gonna show up and take you to jail. I think what the deterrent is, is we know in our heart for whatever reason, that as much as this hypothetical spouse may be driving a hypothetical spouse crazy, it's not right to take another human life. You just don't do it. There's, you just, you don't kill just because you can. Whether you're trying to teach your 5 year old not to squash the worm just because he can. We try and instill these values in our kids. We try and still them in our people. We try and instill them in, you know, as people grow up. But there's this inherent belief that you don't kill just because you can. I don't think the idea of going to jail is what the deterrent is. I think the idea of, I want to be a good person, so I'm not going to strangle my wife in her sleep is more of a deterrent than I'm going to go to jail for the rest of my life. We just don't do it. There are other ways to deal with those issues. Okay, we find another way because we don't kill. What I think we're missing is, especially today, not sure everybody understands that. It's just easier to pull out a gun. Well, people are not amenable anymore to individual consequence and individual self-responsibility. Everything's a collective. Everything's a collective. And you know, I'm going to, I believe that firmly. I was just talking to Brett earlier about my parking lot back there. My parking lot is a microcosm of the horrid outcome of collectivism because people think they can just go park there. And I had somebody park there the other day again. And not only did she park there, she double parked there. So she took up 2 spots, right in front of a no parking sign. I watched her from my window, look at the sign, and then sort of shrug and walk around the corner. And I tried to stop her, I was on another call, I couldn't get out there. And I went out and she's double parked. And it's like, Shamrock came and they towed her car and she was livid. She was absolutely incensed. She's like, wait a minute, I'm 7 months pregnant. I've got all my personal belongings, how could you do this? And it wasn't that, sorry, I parked back there, I knew I shouldn't have. It was like, I'm entitled to park back there and you're wrong for enforcing the rules. And it's like, I don't know where that, how you square that with a collective ideal because it leads to that inevitably. It's like I can do whatever I want and there's no check on that. Which is, to tie it back to the death penalty, is why people get so frustrated because it's so different, because it is supposed to be based on the individual consequences. Not everybody understands that, not everybody wants to deal with individual consequences. It's about the person, it's about each individual, that's how it's supposed to be applied. We don't like that anymore in our society. It has to fit into a group think. There has to be some resolution. Well, we can't do it because of X, Y, or Z. Well, you know, that's not what it's supposed to be. You know, it goes back to gun control. Oh, we need to control the guns. No, the guns aren't running around killing people. It's the people. It's an individual decision. It's an individual, you know, but to take the other side of that for a second The justice system is 1 of those things that inherently we want it to be applied equally to all, you know We want that and maybe that's the inherent problem with the death penalty is that we have made it an individual responsibility thing by creating this standard where if you're if you've got mitigating circumstances or in other words you've lived an otherwise good life and you've got lots to offer we're gonna save your life but the other guy who does the same thing we're gonna kill him because he's you know he hasn't had a good life or maybe the first guy it's not that he lived a good life, but he had a hard life, you know, his childhood sucked, and he was abused as a kid, and et cetera. And maybe that's part of the problem I might have with a death penalty is that the justice system should be blind in some respects. It's not that it's group think, it applies to everybody the same. But we do it in every case, whether it's a death penalty or a theft. We do. A guy, you take 2 guys who walk in and they both shoplift $1, 000. What should happen? 1 guy gets diversion because he's never been in trouble before, the other guy's been doing it for 20 years, he goes to prison. They stole the same thing. Yeah, fair enough. But we still get it from each individual perspective.

Yeah, I mean, yeah. And we don't want, you know, we're painting a picture that we don't want the group think, snap a finger, you did the same crime.

Group think. That's scary. Group think is trying to change that because they're saying and it's in what's happened is everything is getting turned on its ear So we did we think that the criminal law is too harsh on Underprivileged folks who go in and steal stuff because they've got a record a mile long, they're going to jail, where somebody goes in and gets caught the first time, they don't go to jail. That's disparate outcomes, and that must be racial, or it must be some other prejudice, or it must be something. So what they're not doing is looking at those circumstances individually. They're saying, we're just not gonna prosecute anybody. You know, it's like, and that leads to absurd outcomes. And looking at it from that perspective is an absurd perspective, okay? You're supposed to look at it from an individual perspective. But everybody wants to take it from that group perspective. They wanna look at the guy who's got a 20 year record and say, well, why is he going to prison? Not understanding that he's going to prison because he's been doing it for 20 years. He's a professional shoplifter. He has a storefront on the east side. And a fair discussion to have as to why he's been doing it for 20 years. That may mitigate his sentence on some levels still. Now I got you, that makes sense. So I still have, it's still problematic to me, and I think it maybe is just the degree of it. It's like Clint Eastwood, right? Hell of a thing, killing a man. Take everything he's got and everything he's ever gonna have. That's it. And the flip side of that is some folks just need killing. And some folks need, that's right. So what do you do? And how do you square all that? And doing what I do, I have, it's not just that somebody, looking at the guilt side for a second, it's not just that somebody innocent might be convicted. It is that somebody guilty might be convicted with with flawed evidence or a flawed constitutional process and then that can repeat when somebody's innocent. And so it's like to me if you If you kill somebody, impose the death penalty on somebody, and there's no way not only to redress it if you find it, but nobody ever looks for it, because they're dead. Nobody cares anymore. So you're not gonna go back and do an appeal. You're not going to go back and review the transcripts. You're not going to go back and subpoena cop records and find the missing evidence. You know, you're not going to do those things because the person's dead. And that's how people get exonerated with bad evidence or with when you prove that cops Acted with bad intent or maybe they acted with a mistake or maybe a victim recants or maybe it was a bad identification or just turn back the clock and bridge the pre and post DNA era where all of a sudden you've got all these people who were Released and you know as Barry Sheck once said this was that New York rape case. This is the case of the unindicted co-ejaculator, right? Because the guy was actually, he was exonerated, but the prosecutor's response was, well, it wasn't his DNA. He must have had somebody else with him who left the DNA, but he was still there. It's like, If you kill the guy, there's no chance to ever fix it. No, and that's the pragmatic side of it. Okay, so that's where I come back to. Morally, some folks need killing. Pragmatically, it's impossible to do. Or it's impossible to impose in a way that makes me feel good, maybe is what the. Any more, because maybe it's just my hubris. I don't trust prosecutors to get it right. Yeah, I just, and I don't. I certainly don't. I don't, and you know. It's not just because they're prosecutors, it's because they're human. Right, because Lord knows I did everything I could to make sure I didn't send somebody there, okay? It was my biggest fear as a prosecutor. I never wanted to send somebody to prison, death row or not, for something that they didn't do. And I always ask this question, and we'll turn this to child rape cases, because I ask this question a lot. It's like anybody here of a child rape case or somebody convicted of child rape that was later exonerated, where later DNA let them out of jail, or the victim said, sorry, I made it up because it was just, you know, my mom told me to, or my stepmom told me to, whatever it is. And most people have heard of that kind of scenario. And then you ask the next question. How many people think that the prosecutor, the social worker, the police, the judge, the jury, how many people thought that they were working on a wrongful conviction case in real time. In other words, how many people thought at the time this guy was wrongfully convicted that he was actually innocent? And the answer is none. I don't think you have to go to impose bad intent on prosecutors of the system. That probably happens, but I think it's rare. Where a prosecutor really says, I know that guy's innocent, I'm gonna convict him anyway. I think it's they think they're doing the right thing, but they're wrong. And right, people are human, we all make mistakes. I don't, you know, I've not seen, knock on wood, I've not seen a specific instance of someone going out and doing something because they want to nail that guy because they don't like him. But what I do see, and I think you would agree in your profession, is that decisions are colored more by how's this gonna appear in the dispatch tomorrow? How's this gonna play when I have to go to the rotary meeting next week? I think those factors play into it. And maybe that was the luxury that I had working for the AG's office and traveling around as I can go into these counties and throw dynamite around and not worry about what happened. Yeah. You get to come in sort of like Henry the second, right? It's the King's Justice coming in, you're supposed to be unbiased and there's no local influence over you. And maybe that's a good thing. Maybe I was lucky enough that I didn't have to worry about that. But I think, you know, because of the nature of the system right now, everybody's more worried about how's this gonna play in the paper tomorrow. What's it gonna look like? And then I think maybe a close kissing cousin to that concept is this. When police, when prosecutors, when the system thinks that they've got the right guy, but they can't prove it, That's when they start bending rules. And I have experienced that many, many times with guilty people, they're right. And I've experienced it also a few times when they're wrong. But it's like people, and this is another sort of reflection of society, It's like, you know, there is a group out there, people out there right now that will say, well look, it's so important, our cause is so just that we should change the rules, at least just to get this done. And, you know, that's like the old man of all seasons. Sooner or later, the devil turns back on you and you've got no protection left. And I think that's what we're getting to. It's like, you talk about the child sex cases, sex cases in general. We have to believe every woman, right? You know, that's an idea. The Me Too movement. I mean, yeah, there are some things, the pendulum needed to shift, okay? The old Hollywood thing and all of that needed to shift. And nobody's saying that the way it used to be was good. But that believe every woman makes it much more difficult because he, well she said it, so she has to be telling the truth. Well, they're willing to then bend rules and change the system a little bit to make sure that we have to believe every victim. Well, there are guys who didn't do it. Plenty of them. Yeah, plenty of them. I've seen more false convictions or wrong convictions in that realm. And I think to your point, Paul, more people that shouldn't have been prosecuted in the first place, that even if they did something wrong, they got charged with too much. And they're sitting in prison and their lives are ruined. And they should have had a consequence, but it's too much because of this movement coming back the other way. The backlash has gone too far. Just the accusation alone is enough to ruin a guy. Even if he's acquitted, even if he's acquitted, lose your job, everything's done. He's done. Yep. And you can't hide. It's social media era. Nope. So I mean, Florida, they, you know, you got to Santis. Um, generally look, I, like we call it, like we see it here at Common Sense Ohio. When I see things that make sense to me, I call it out. When they don't, I call it out. And I don't think it makes sense to me to have a death penalty imposed, even suggested for things like rape or child rape, not because I think those things don't deserve the death penalty, but because I think it just is wrought with all sorts of potential problems on killing people who are otherwise innocent, or may be innocent, or whatever the situation. And I think the Supreme Court's got something to say about it too. Yeah, I mean, the United States Supreme Court has been pretty consistent that the death penalty is to be applied for murder cases, so that's it. So it's gonna be interesting to see how that works its way through the system. Yeah, and anybody who's gonna take a snippet of this conversation and say, You're in favor of child sex offenders. That's not the point. You know, it's like look I'm the first 1 to say if we could be if we could have a magic wand and universally know the truth in every single case and you would know that somebody raped a two-year-old or a four-year-old or a five-year-old cut their freaking nuts off and sliced their throats, right? I mean, it's a horrible, horrible thing. But I have seen the other side of it, where maybe of every 10 that are accused, there's 2 that are falsely accused. And then, is it okay to kill them? It happens, unfortunately. I mean, there's no question that it does happen. Olivia and I tried a case last October. I remember the case. And your dad was falsely accused. You believe that in your heart. In my heart of hearts, I don't believe he ever touched his stepdaughter. And luckily, after 4 days, the jury found him not guilty. And the prosecutor thought they had the right guy. Absolutely. And the social worker thought they had the right guy. As as the social worker said at the end of the interview, the wonderful forensic interview that's done on every 1 of these cases. Thank you so much for your courage and coming forward. You did the right thing. You did the right thing, right. Not an independent discernment of whether the interview questions were done correctly or whether the responses were accurate. No follow up to see if anything she'd ever said was truthful enough. Thank you for coming forward today. You were very courageous in doing the right thing. Yeah. And so

the classic instance of that, what you're, what you just mentioned, Paul, is that whole McMartin preschool. I mean, just, you know, I mean, can you imagine, uh, I don't know how, how many staffers it was like 15 people, something, It was a huge number of people that were supposedly all having, you know, orgiastic sex with these children. And Wow, you'd put 15 people to death on the basis of

psychologically driven

recant or memories that were brought forward after counseling these children and the children are just repeating back to get approval from the counselor, these stories after, after it had been implanted in their, in their head. Yeah. We'll have to do another episode on child

sex allegations because you know, it's like there's you've read the studies where they actually Will tell a kid about a birthday party where Mickey Mouse was there or Donald Duck was there or they'll create this whole scenario and a kid will be told this stuff and then years later they'll ask him and they believe it like it happened. They believe it like it happened.

The memory works that way, you know, it's like- On the other hand, on the other hand, if there had been a security camera on Mr. Clinton who raped a two-year-old and then, as Paul said, murdered the 2 year old afterwards. And you got that on film.

I'll flip the switch on that guy. He left enough. He left enough DNA around it. Might as well have been on video. The good news now is evidence has gotten a lot better. So DNA happened, but there's still playing the joints and By and large these child sex cases. There is no physical evidence. I mean I'm working on 1 right now a guy was convicted And I'm trying to fix it The allegation was like 5 years of I'm talking hardcore adult sex Not to get graphic about it but ankles behind the ears sex with a grown man and this was a young girl and You know the evidence at trial was the Hyman was intact. There's 0 physical findings whatsoever. Not even a cleft, nothing, 0. There was no real physical evidence whatsoever. It was just this girl's word against a stepfather and you know, he's doing life in prison. And it's, it happens, it's like your case. I didn't try that case, I'm working on an appeal and I believe in my heart of hearts, this guy is innocent, because I've seen what guilt is. And it's not this. And that's the, you know, When you have a forensic interviewer and it's her job to get the story and the idea behind these forensic interviews is that you only want to talk to the child once so that you don't re-traumatize the child. And you get them on cross-examination and say, so it's not your job to confront with inconclusive statements or contradictory statements or anything like that. It's just your job is to collect their statements. She goes, oh yeah, just, it's not my job to scrutinize that. It's not my job to do anything else like that. But whose job is it? You take this position that the child is telling you a 100% truth, you're thanking them for coming forward, but you're not validating them, you are validating them. You're absolutely validating them. The whole point of validating them is- Kids want approval at every level. And once you say that, no kid can walk that back. You can't walk it back. There's no way to walk back that accusation. So whether you're just telling your boyfriend because you want some reason to be special or whether you're telling somebody because there's a fight going on between your mom and your stepdad, you can't walk that accusation back when it comes back. And just there needs to be, to base a death penalty on that. You want to talk about getting incongruent results. I mean, it's bad enough now with murders. Let's let's throw that mix in and then talk about whether or not it's a good idea to be executing people who might be innocent. Yeah. And that's that's the scariest thing.

President Trump in a in his crime speech just a couple of days ago, uh, running for, you know, his second term with all of his issues and the Me Too trial that took place in New York, which they had to pass a special law so somebody could come forward after the 25 year statute of limitations had run. But President Trump a couple of days ago also threw in drug dealers. Uh, kingpin drug dealers should be getting the death penalty. So, you know, now, now it's child rapists, kingpin drug dealers. Well, that's your, that's your point, Paul. It's like politics. Yeah. That's not, that's overtly political. It's, it's like admittedly political, right? Everything's becoming political at this point.

And if we could just step back and actually talk about what the constitution says, I mean, that's my common sense. Whenever I have a question, I actually go back to look at that old dusty document and I try to figure out where are we supposed to be? And it comes back to individual responsibility, it comes back to taking care of ourselves, and it comes back to the government isn't supposed to be the 1 that's in control, we're supposed to be taking care of ourselves. And there are punishments that are allowed, and punishments that are not allowed. But this political aspect of it is making it a mess. And the two-party system hasn't helped that in any way, shape, or form, in my opinion. Yeah, it's become so, everything is so polar that the middle is impossible. You know, it's like nobody, you can't end up in the middle without getting absolutely skewered by both sides. You know, that's the problem. There is no middle position that you're allowed to have, which is why we have this show. Right, Norm? Yeah.

You know, I'm thinking of Brett Kavanaugh, you know, this Trump thing that's supposed to happen at the department store in New York, you know, Bill Cosby. You know, Not only would I want the death penalty, if it's gonna be used to be used, you know, pretty co-terminus after the trial, but victims need to come forward way sooner than they have been. This lady that testified about Brett Kavanaugh, you know, it was what, a high school or a college party, and here we are, you know, 30 years, 40 years later, and she can't remember the house, the party, who else was there, what day it was, what street, nothing. And in Bill Cosby's victims, I think 1 was under the statute of limitations, the other 29 or however many didn't come forward in time. And this Trump thing at the department store. Another thing, you know, the New York legislature passed a special Trump statute of limitations exemption so that lady could bring her case. It's the the victims need to act sooner and the justice system needs to act sooner. That I'm very frustrated as a citizen. I see our justice system falling apart because of people not respecting the constitution and gumming up the system with incessant second chances, third chances, fourth chances, and review, review, review. I guess, You know, I'm all in favor of appeals and reviews, but at some point, if we're 100% sure that this person did the crime and there are no other reasons,

they either need to do it or let's get rid of the death penalty. Well, I think the problem is your premise is impossible. You know, you're never a hundred percent sure. And even when you're a hundred percent sure, then are you a hundred percent sure that the system, uh, wasn't, uh, that the system was applied appropriately. And then if you're a hundred percent sure on this case, when, when are you not a hundred percent sure, Where do you draw that line? Like, what is it? Because 30 years ago without DNA, we were 100% sure and then we were 100% wrong 10 years later when DNA came out. So it's like, you know, you can say I was 100% sure, but What if you're not?

Yeah, I guess, you know, we have some crimes on video. We have the guy, the guy who shot Reagan and James. I can't think of a better way to express it. Fair enough. But you can't say.

So. So if he killed him. So is the law going to read if it's on video you can kill somebody with a death penalty or if it's not no I'm talking about when you're 100 sure so the law's gonna read 100 sure but how what was 100 before video

well paul just mentioned the dna

video there's other ways what was 100 sure before dna and then about what about uh say james earl ray He never denied he shot Martin Luther King. No, well, so a confession, but how are we, there's false confessions too. The point is you never, when I say never 100% sure, I appreciate that there are times when the evidence is totally conclusive, but that slope gets slippery. And you still end up with this theory that, all right, so we're 100% sure. Does that mean we should kill this person without a mitigation hearing? And only then can we do it if we're 100% sure. Well, Steve, it was you that was arguing against

unequal application of the law. So whether the guy has a nice smile or a tan and he looks like Ted Bundy, I could care less. I could care less if he's John Wayne Gacy or Ted Bundy, who's handsome, whether he has a law degree, or, you know, he goes to church and all that stuff. I believe in equal

application of the law. So to be clear, I only pointed out that that's 1 of the things that bothers me about it is that you have this individual assessment later on about how good somebody is whether we should kill them. And that's a very difficult, that's a very difficult standard to get right consistently.

I hear you. I believe in yes, I believe, you know, yes. So that's the old cocaine argument. You know, you had people using powder cocaine, not going to prison and people using

crack. Not quite the same. But yes, I mean, what I'm saying is if we're going to decide based on somebody's worth as a human being, whether we're going to kill them or not, then I believe that's an impossible task to get right and get consistent Because I just think it's impossible. And that's why I think the death penalty, you know, as a practical moral matter. Yeah, it's like an eye for an eye. It makes perfect sense, right? There are cases we all know that you should kill somebody, but if you're going to implement a standard of justice in a, in a democratic society, it cannot be done, I don't think, with the reliability and effectiveness to make it, with the consequence being permanent,

I don't think you can implement it. That's my problem. And I don't think we want to do that because well, the firing squad, somebody has a blank and somebody's got a blank, right? So, so we don't really consciously want to do this. They won't sell us the drug. They won't sell us the drug.

You know, so there's some, something bubbling here. Exactly. Yeah. Yeah. It's a tough 1. And it's not, it's not, it's Yeah, it's not a fun thing to do no somebody

no, I mean in the context of a child sex case I guess it's just a matter of degree. Maybe it's like the chances of getting that wrong are so much greater. I agree, that's the problem. I mean, like Curtis Clinton, he was as guilty as the day is long. There's not a question about that. The jurors came back during the mitigation phase, during that second phase about whether or not to impose a death penalty, wanted to make sure that the defense counsel didn't screw it up because they didn't present anything. So they asked the judge, was this how it was supposed to be? Because they were like, there's nothing for us to weigh this against, how does this even work? So they wanted to make sure that they got it right. Everybody wanted to make sure they got it right. And they got it right. So there's no question about what happens here. But his backstory, why that wasn't presented, does that get him a pass? Because let's be honest, there are people who would be happy to take care of these things. I'll pay for the round myself. I'll take them out. I'll make him dig his own hole. I don't have a problem with that. Some people just need killing. But systematically, throughout society, How do you do that consistently? And it becomes much, it is becoming more difficult as technology advances, as there's more evidence, as there's more DNA, it just seems to be coming much more difficult to have any certainty because for whatever reason, we just can't get to that point. And the pragmatic side of me is like, what's the difference at this point? Between 15, 20 years locked up in prison before we take him down the hall. Yeah, why do it at this point? Yeah, why do it at this point? So it's a pragmatic aspect. So let me ask you guys a question.

I think you're, you know, you guys are way smarter than me.

I would be willing to bet against that. No, he's right.

Well, you guys have actually, you know, you've been under fire in this situation and Brett and I have not. So you have expertise, both of you. You keep talking about consistency. Nothing is consistent in life at all. I mean, the circumstances of your birth and what country and what society and what freedoms you have. The bridges you go over in 1 county might be very well engineered and very well maintained. You drive in the same state, the same country, to another county and the bridge is rickety and ready to collapse. So nothing, life and death is consistent in our country. I get I am less bothered by the idea that 1 county or 1 state may choose to use the death penalty and another county or state doesn't.

That is local control. That's their decision. Oh, can I, that's not the consistency we're talking about as much as, uh, maybe in the same county, you're going to have incongruent results based upon 1 jury, looking at a guy's life differently than another jury, looking at a guy's life and maybe looking at it this way, Norm, it might be a matter of degree? And I'm willing to admit that, which is not necessarily logical, but I think there's something here. It's like if I'm going to go defuse a bomb, it's like the classic movie where if you cut the red wire and you're wrong, you blow up. And if you cut the right wire, you live. It's like, we're cutting the, like we're diffusing a bomb with a wire cut when we do this. There is no going back. Now, if it just meant that you made a mistake and you might have to fix it, and you caused a mess and you have to clean it up, it's like I'm willing to take the chance to cut the wire. But if it's permanent, it's a harder decision to make. And you can say logically, all the facts and circumstances should weigh the same. Everything should be, just appreciate that you might get it wrong sometimes, and it's going to be inconsistent other times. But I think fundamentally it just bugs me for that reason. It's like you have no, it's permanent, you can't fix it. If you got it wrong, you can't fix it. And not just wrong about guilt or innocent, but wrong about maybe this guy had some redeeming qualities as you pointed out that 10 years later emerged or maybe not and if we can't accept and if I can't accept that we can always make that second decision correctly then as much as I believe and sort of like certain people just need to die you said Paul to certain people need killing You can't build a system around it. That's sort of maybe where I am with it. And that's kind of the point. I mean, it's not like they're going home, right? If they're convicted of these homicides and everything else like that. It's not like, well, it's death or they get to go home and keep doing this stuff. I mean, they're going to Lucasville in Ohio, not a pleasant place. They're going to Youngstown Supermax. Most unpleasant. Not a very pleasant place. So, you know, there is punishment. The point with respect to the death penalty is while some folks need killing, and I was a part of that for 20 years, trying to see whether or not that process should work, I'm not so sure that it's the best system at this point. I may be frustrated with people not having the honesty to talk about why it's not the best system and trying to find an easier way around that. But at the end of the day, is this really what we want as a society? Is this really how we want it to be? We all may believe that some folks need killing, but that those tables can turn at some point in time. And it's just, is this the system we want? And I'm not sure anymore that it's the

best process. Maybe we're naturally evolving out of it anyway because we're not imposing it. We're not doing it. So we're not doing it. So we're kind of- From a pragmatic standpoint. Subconsciously not doing it anyway. Yeah.

The best book I ever read about the death penalty was in cold blood by Truman Capote. And yeah. So the 1 the 1 murder of the cutter family, the 1 murder was kind of egged on and kind of dared by the other guy. And and yet they were both put to death. Right. So, yeah, I understand, Paul. And you and Steve, you know, are very educational. I'm not happy about the death penalty. I really, that statistic that I started out with about 1 out of 5 people on Ohio's death roll were excised from that row, you know, is shocking to me. Yeah, but I don't think that's because they were innocent. No, I think it's because- No, no, no, no, no. But there was some defect. Right. And so they were excised off of death row. And so that's very disturbing to me because had that review not taken place,

20% more people if we were using the death penalty would be gone. I'll give you an example of just how weird it gets sometimes and how competitive, okay? Steve and I have been doing this for 25 years, okay? As a defense attorney, as a prosecutor, now as a defense attorney, it is battle. I mean, there's no doubt about it. We go into these trials and we gear up and, you know, To do what we do, there has to be that competitive side. I don't care what anybody says. You hate to lose, you want to win, but you want to make sure that everybody follows the rules and does it the right way. When I was with special prosecutions at the AG's office, I went up to Cleveland. Now, Cuyahoga County, beautiful County, lots of beautiful things up in Cuyahoga County, but the legal system up there is a blood feud. Okay. It is complete and total just a death match in trials. Trying a case was a double murder out of a subway and I'm on retrial. So it's gone up on appeal. It's been reversed. It's getting a new trial, went up, got convicted a second time and came back for prosecutorial misconduct. The prosecutor, a witness didn't testify, refused to testify at the second trial. The prosecutor, as they're gathering all of the exhibits at the end of the trial, puts her statement in to go back to the jury. She didn't testify, but lays everything out, and he sneaks it into the pile to go back so Jurors are deliberating about 3 days into the deliberations. They asked the judge Hey, we have this sheet here, but she never testified or we allowed to do this He declares a second mistrial So it's gone up twice and come back, right? Guy's been in prison for 15 years. The prosecutor's like, they're talking about trying to investigate how it goes back there and everything else, and they're like, you gonna take a polygraph? He goes, I'm not taking a polygraph about that. I'm like, I'm gonna go back to my office and nobody's gonna do a thing about it. Because that's Cuyahoga County. It's a blood sport. Came up, by the time I get it, they're like, do you wanna try this case again? I'm like, no, I don't wanna try this case again. How am I gonna try this case again? So I sat down with the victim's family and I had the very difficult conversation about all the different hurdles that we had to go through and the wife of the widow, the guy who was working at Subway or Papa John's, I can't remember what it was. You know, I had to explain to her that, you know, the guy who killed her, there was no question, he's the 1 who did it. Okay. It wasn't even a question that he was the 1 who did it. But I couldn't ethically go forward anymore because 2 of the witnesses had died. The 1 wasn't going to testify anymore. The prosecutor had already cheated on 1 version of it. And then don't even get me started on the stories we know about defense attorneys. So it works both sides. Yeah, both sides do it. Both sides do it. But so that's the problem with the system sometimes. You know, that's Cuyahoga County. And you talked about bridges being built, and I grew up in Mahoning County, and there's a whole reason why those bridges are different. But that's. Well, What you're talking about is the scenario that scares me the most. It is when people come under the cloak of righteousness, they can justify virtually anything. Just ask Joseph Stalin. Yeah, I mean, and that's the thing. We heard stories growing up as young prosecutors and defense attorneys about attorneys here that would find a witness the night before who was an alcoholic and leave them 25 bucks as they were doing their witness interviews so that they would get drunk and not show up for court the next morning. Prosecutors, defense attorneys, when it becomes a blood sport and it becomes more about that competition, that's when bad things can happen. And when you ramp up those, when you ramp it up to the point where it's a death penalty case, or it becomes even more worrisome that that's what's gonna happen. And it does happen. It does happen. So if that happens in a death penalty case, the consequences are are unfixable. You know, if you've killed somebody and that's sort of the problem. And I get it like 15, 20 years later, by the time it rolls back around, you know, all the appeals go through and everything else he theoretically could have been dead. Yeah. And then what do you do? Well, it's not even what you do. You would never discover it because nobody would bother looking at that point. And that's the problem. Not even the Innocence Project folks get involved at that point. Alright, well with that we've got to wrap it up guys. This has been Common Sense Ohio. We've been at it a little bit longer than we normally do, but I think it was a good discussion. So Paul, thanks for coming, man. I know. Yeah, thanks, Paul. Nice to meet you. And he's about to join us upstairs at the law firm. You got an office, so that's looking forward to that. As long as the check I left you today clears. As long as the rent check clears, right. We might see you on the mic down here with a lawyer to talk to. I don't know. We'll talk more about that. But so commonsenseohioeshow.com, as I said in the beginning, what we want you to do is really easy. All you got to do is download, like, and share. And did she tell us to do anything else? I don't remember. But anyway, that's good. And you know what? It'll work. That's exactly what we should do. Yeah, download like and she being our marketing guru, but download, like and share, read Norm's blogs. Somebody's got to. You know what I mean? I didn't get a laugh out of that. No, I'm joking. No, it's good stuff, so check out the website.

My last blog was Lock Hillary Up because the Durham report is now the third investigative report. The Mueller report, the Durham report, the FEC fine on Hillary for paying for the false dossier. Man, I'll tell you what, the country lost 3 years of focus because of a fake false narrative.

And if anybody deserves to get locked up, it's Hillary Clinton. So that's my point. But we have to believe every woman except Monica Lewinsky, right? And what's her name? The other gal that accused Biden. Fawn Hall. No, Fawn Hall. Tara. Biden. Biden's victim. Tara Reid, I think. Yeah, Tara Reid. She's actually leaving the country now for fear of her own safety. But anyway, all right, with that, we're gonna wrap it up. So it's commonsenseohioshow.com, for those who missed it the other 5 times I said it. Like and subscribe and share for those who didn't get that either. Download, I think that's 1 of them, but until then, we are Common Sense Ohio coming at you right from the middle.