[This decision has been published in Ohio Official Reports at
91 Ohio St.3d 1263.]
THE STATE OF OHIO v. SCOTT.
[Cite as State v. Scott, 2001-Ohio-99.]
Criminal law—Aggravated murder—Death penalty—Stay of execution granted.
(No. 85-1209—Submitted April 12, 2001—Decided April 17, 2001.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 48609.
ON MOTIONS for Stay of Execution.
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{¶ 1} At 7:39 p.m. this evening, April 17, 2001, this court received a copy
of a journal entry submitted by the court of appeals. The entry requests this court
to stay execution of sentence in this matter to allow the court of appeals time to
thoroughly and completely address the issues raised on appeal.
{¶ 2} IT IS ORDERED by the court that the execution of sentence is stayed
until further order of this court, and the court of appeals is ordered to file its decision
with the Clerk of this court no later than 5:00 p.m. on April 20, 2001.
MOYER, C.J., DOUGLAS, RESNICK, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
PFEIFER, J., concurs separately.
F.E. SWEENEY, J., not participating.
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PFEIFER, J., concurring.
{¶ 3} I concur with the court’s decision to grant a stay to allow the court of
appeals to render its decision. This case raises several issues that are before Ohio’s
courts for the first time, issues that deserve the deliberate and thorough
consideration of the appellate court, and ultimately of this court.
{¶ 4} R.C. 2949.28(B)(2) states that upon receiving notice of the apparent
insanity of a convict sentenced to death, “a judge shall determine … whether
SUPREME COURT OF OHIO
probable cause exists to believe that the convict is insane.” The trial judge’s
findings of fact, dated April 16, 2001, state that “Jay D. Scott has failed to show
probable cause that he fits the definition of an insane person as outlined in [R.C.]
2949.28(A).” It is possible that the statute and, through no fault of his own, the
trial judge have misplaced the burden of proof.
{¶ 5} In Ford v. Wainwright (1986), 477 U.S. 399, 410-412,
106 S.Ct. 2595,
2602-2603,
91 L.Ed.2d 335, 346-348, the Supreme Court of the United States
stated:
“The Eighth Amendment prohibits the State from inflicting the penalty of
death upon a prisoner who is insane. …
“…
“… In capital proceedings generally, this Court has demanded that
factfinding procedures aspire to a heightened standard of reliability. This especial
concern is a natural consequence of the knowledge that execution is the most
irremediable and unfathomable of penalties; that death is different.
“Although the condemned prisoner does not enjoy the same presumptions
accorded a defendant who has yet to be convicted or sentenced, he has not lost the
protection of the Constitution altogether; if the Constitution renders the fact or
timing of his execution contingent upon establishment of a further fact, then that
fact must be determined with the high regard for truth that befits a decision affecting
the life or death of a human being. Thus, the ascertainment of a prisoner’s sanity
as a predicate to lawful execution calls for no less stringent standards than those
demanded in any other aspect of a capital proceeding. Indeed, a particularly acute
need for guarding against error inheres in a determination that ‘in the present state
of the mental sciences is at best a hazardous guess however conscientious.’ That
need is greater still because the ultimate decision will turn on the finding of a single
fact, not on a range of equitable considerations.” (Citations omitted.)
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January Term, 2001
{¶ 6} Whether Wainwright requires the state to establish beyond a
reasonable doubt that a convict about to be executed is not insane is arguable. It is
clear, however, that the burden is not upon the convict to prove that he is insane.
This issue is new to Ohio’s courts because this is the first case involving an
involuntary execution to proceed to this stage since the reinstatement of the death
penalty in 1981. The granting of a stay will enable the court of appeals to determine
whether R.C. 2949.28(B)(2) violates the Constitution of the United States by
placing the burden of proof on the convict.
{¶ 7} Section 9, Article I of the Ohio Constitution states that “[e]xcessive
bail shall not be required; nor excessive fines imposed; nor cruel and unusual
punishments inflicted.” Even though the quoted language is exactly the same as
that contained in the Eighth Amendment to the United States Constitution, this
court has never determined that these words mean the same thing. To the contrary,
this court has stated:
“The Ohio Constitution is a document of independent force. In the areas of
individual rights and civil liberties, the United States Constitution, where applicable
to the states, provides a floor below which state court decisions may not fall. As
long as state courts provide at least as much protection as the United States Supreme
Court has provided in its interpretation of the federal Bill of Rights, state courts are
unrestricted in according greater civil liberties and protections to individuals and
groups.” Arnold v. Cleveland (1993), 67 Ohio St.3d 35,
616 N.E.2d 163, paragraph
one of the syllabus. See, also, People ex rel. Arcara v. Cloud Books, Inc. (1986),
68 N.Y.2d 553, 557,
510 N.Y.S.2d 844, 846,
503 N.E.2d 492, 494 (“The Supreme
Court’s role in construing the Federal Bill of Rights is to establish minimal
standards for individual rights applicable throughout the Nation. The function of
the comparable provisions of the State Constitution, if they are not to be considered
purely redundant, is to supplement those rights to meet the needs and expectations
of the particular State.”).
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SUPREME COURT OF OHIO
{¶ 8} I believe that granting a stay will enable the appellate court to
determine whether R.C. 2949.28(B)(2) violates Section 9, Article I of the Ohio
Constitution by placing the burden of proof on the convict.
{¶ 9} The second and separate issue advanced for consideration is whether
the Constitution of the United States or the Ohio Constitution prohibits the
execution of a person with a diagnosed severe mental illness. In his findings of
fact, the trial judge stated that “Mr. Scott suffers from Chronic, Undifferentiated
Schizophrenia. Chronic Undifferentiated Schizophrenia is a ‘severe mental
illness.’ ” The record indicates that the effects of Scott’s schizophrenia are
intermittent and controllable by medication.
{¶ 10} This issue is novel and is certainly not frivolous. A stay will enable
the appellate court to determine whether Section 9, Article I of the Ohio
Constitution prohibits the execution of a person with a severe mental illness.
Guidance from the Supreme Court of the United States as to the protections offered
the mentally ill facing imminent execution would be helpful on this issue, but,
again, our Constitution has independent force, and the court of appeals and this
court should not avoid our duty to interpret the Ohio Constitution as it applies to
the main issue directly raised by Scott.
{¶ 11} A separate issue that has not been raised is whether it is
constitutional to execute a mentally ill convict whose mental illness is being
controlled by medication. A further constitutional complication could arise if the
medication were being administered against the will of the convict. It is deeply
troubling to consider that the state could execute a person who would be protected
by the Constitution if he or she were not forcibly medicated. (The record indicates
that Scott has not been on medication for at least six weeks.)
{¶ 12} Wainwright clearly states that the insane may not be executed, but it
is unclear when the determination of sanity must be made. Irrespective of
Wainwright, I conclude that the Ohio Constitution requires that whenever there is
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January Term, 2001
an indication of mental illness, an independent psychiatric examination of the
convict about to be executed must be performed within one week of the execution
date. Absent such an examination, there is no way to know whether the convict is
insane as he or she prepares to receive society’s ultimate punishment.
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Gold, Schwartz & Co., L.P.A., and John S. Pyle; Law Office of Timothy
Farrell Sweeney and Timothy F. Sweeney, for movant, Jay D. Scott.
Betty D. Montgomery, Attorney General, David M. Gormley, State
Solicitor, and James V. Canepa, Assistant Attorney General; William D. Mason,
Cuyahoga County Prosecuting Attorney, and L. Christopher Frey, Assistant
Prosecuting Attorney, for state of Ohio.
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