Capital Case Charging Protocol
In order to better serve and protect the community and to pursue justice in all cases, the following protocol shall be followed in evaluating and charging aggravated capital specification-eligible murder cases:
- The Major Trial Unit Supervisor or his/her designee (MTUS) shall identify all aggravated murder cases that are eligible for the inclusion of one or more §2929.04 capital specifications that makes a defendant eligible for the death penalty.
- Capital-Eligible Specification Cases (CESC) are to be presented to the Grand Jury without the §2929.04 capital specifications with a reservation of rights to be able to seek inclusion of the §2929.04 capital specifications at a later date.
- The MTU APA (MAPA) assigned to a CESC shall produce an initial memo to the Capital Review Committee (CRC). The memo shall include: a) an analysis of the strengths and weaknesses of the trial phase of the case; b) applicability of the §2929.04 mitigating factors to the defendant and an assessment of the strength or weakness of the mitigation phase; c) input from the victim’s family; d) input from law enforcement; e) input from the defense, and f) proportionality considerations.
- The CRC shall meet within 30 days of the initial indictment of all CESC cases to recommend to the County Prosecutor whether or not to seek a superseding indictment with the death penalty. If time is waived by the defense, the CCPO will consider extensions of the 30 day review.
- The CRC shall be guided by the following:
A) The decision to seek the death penalty will be reserved for only those heinous aggravated murder cases wherein the facts and evidence have the weight to firmly, unanimously, convince a jury of 12, or a judicial panel, that the aggravating circumstances outweigh any and all mitigating factors beyond a reasonable doubt.
B) The strength of the evidence and the severity of the case must be so compelling that the fact finder will recommend the death penalty, the trial court will impose it, and appellate courts will be expected to uphold the conviction and the death sentence as to the strength and weight of the evidence and all known/expected constitutional issues.
- If the County Prosecutor accepts the CRC’s recommendation of proceeding without the inclusion of any of the applicable §2929.04 capital specification, the case shall proceed as a non-capital eligible aggravated murder case and there will be no re-indictment to include the capital specification.
- If the County Prosecutor accepts the CRC’s recommendation to seek a superseding indictment to include the §2929.04 capital specification, making it a death penalty-eligible case, the case shall be re-presented to a Grand Jury. Upon re-presentment, the Grand Jury shall be informed that the State is seeking to include capital specifications that will make the Defendant eligible for the death penalty in a capital case.
- Post Capital Indictment Review: Once a case has been re-indicted (or indicted initially per paragraph 9) then the MAPA assigned to the case will present a final review memorandum at least 30 days before trial date to the CRC for a final decision as to whether to proceed to trial with the capital specification intact. The memo shall include the same elements as provided in paragraph 3 and the CRC shall be guided by the same considerations in paragraph 5.
- Notwithstanding the above, the County Prosecutor may recommend at any time that a case be indicted with a capital specification in extraordinary cases. If a capital specification is included, the case shall proceed as outlined in paragraph 8.
- A case that has been indicted or re-indicted to include one or more §2929.04 capital specifications shall proceed as a Capital Murder case until and unless the State makes a motion to delete the §2929.04 capital specifications after a subsequent and final CRC review before trial.
- All plea offers, including life without parole plus a consecutive sentence(s), will be given consideration at any time during the process, including during the trial phase or the sentencing phase, as the facts and circumstances demand.