The choices in the Castro case
There must be something in the water here. Forty years ago, that something was
sufficient to set the Cuyahoga River on fire.
Now, it seems to work differently.
A couple of years ago, Cleveland achieved nationwide notoriety through
the work of Anthony Sowell, when police found eleven bodies of women Sowell had
raped and murdered, then buried in his basement and backyard.
His trial in 2011 resulted unsurprisingly in his conviction
and death sentence, but now comes along Ariel Castro and puts us back in the
national spotlight. Amanda Berry
disappeared from the Cleveland streets in 2003, just before she turned 17. Gina DeJesus was just 14 when she vanished a year
later, and Michelle Knight was 20 when she went missing in 2002. It turns out all three had been kidnapped by
Castro and held in dungeon-like conditions in his house on the city's near west
side. Actually, there was one other
captive: Amanda's six-year old daughter. The father was Castro; he was alleged to have
repeatedly raped the women, and to have induced one of them to have four
miscarriages by beating her.
After the initial celebrations over the miraculous recovery
of the girls, the legal machinery began its slow grind. Prosecutor Tim McGinty announced that he
would seek an indictment alleging a count for every day the girls were held in captivity,
and proved almost as good as his word:
the indictment, which you can read here
(scroll to bottom of story) contained 329 counts, and that only covered the period
up through February 2007; the case is still being investigated. An idea of the overkill can be found four
counts of kidnapping just for the day Knight was abducted -- one for luring her
into the car, one for taking her to Castro's home, one for restraining her
upstairs, and one for chaining her in the basement. Whatever the resolution of the case, the
concept of allied offenses and merger is going to get a workout.
The more interesting aspect of the case is the several charges
of aggravated murder. The statute includes
"the unlawful termination of another's pregnancy," and the indictment specifies
that "the State of Ohio reserves the right to seek a superseding indictment
containing the appropriate 2929.04 Aggravating Circumstances." Although, as I noted in a previous
post, McGinty has been much more chary of seeking the death penalty than
his predecessor was, he's announced that's on the table in this case, with his
capital sentencing committee reviewing the matter.
That would certainly put Castro's lawyers in a more
difficult position. Although they're
both well-respected and experienced criminal attorneys here in Cleveland, their
entrance into the case wasn't the smoothest:
they proclaimed that Castro "loved" the daughter he'd sired through his
rape of Amanda Berry, a remark so infelicitous that you half expected them to follow
it with an announcement that they'd be seeking court-ordered visitation. Things have since gotten back on track; after
Castro's arraignment yesterday, one of the lawyers implicitly acknowledged the
obvious: whatever the outcome of the
case, it does not involve Ariel Castro ever breathing air outside of prison
walls. The legal team's obvious gambit
at this point is to work out a deal that would spare Castro the possibility of
a death penalty.
That really shouldn't be hard to do. The claim that capital punishment can be
imposed for the termination of a pregnancy runs into an immediate hurdle in the
form of the Supreme Court's 2008 decision in Kennedy
v. Louisiana (discussed here),
in which a bare majority held that the death penalty cannot be imposed for
child rape, or essentially for any crime which doesn't involve the death of the
victim.
Sullivan creates
not only a legal problem for trying to put Castro on a gurney, but a factual
problem as well. The pro-life/pro-choice
debate aside, making this case a capital one involves the question of whether
the fetuses that Castro aborted were "alive" in the sense that the termination
could meet Sullivan's requirements. Seeking the death penalty for Castro would probably
have the consequence of forcing his attorneys off the case and having the
public pick up the tab for his defense.
There's just no way Castro has the resources to bring in the medical
experts that would be necessary to litigate that question.
Or the resources for attorney fees, for that matter. One thing we learned from the Sowell case is
that death is indeed a qualitatively different penalty, and that the efforts
expended in defending a person from a capital charge need be greater by several
orders of magnitude. There was a
business near Sowell's house which had a surveillance camera. One of the many defense expenditures that the
taxpayers footed the bill for was having a couple of paralegals view two years'
worth of footage from that camera to see if there was anything which could help
the defense. There wasn't. You don't do that in any other case; you do
where the State is trying to kill the defendant. Now imagine trying to put together a defense
concerning events which played out over more than a decade.
That's not to suggest that we can expect to see a plea deal
hammered out in the next few weeks, where Castro is sentenced to a couple
hundred years in prison, and everyone gets on with whatever they get on with. The prosecution and defense have to do their
due diligence. But unless somebody gets goofy,
that's the deal that should eventually be worked out.
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