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State of Ohio v. James E. Trimble, Case no. 2005-2436
Death Penalty, Portage County
Nancy H. Rogers, Ohio Attorney General, et al.
v. Planned Parenthood Cincinnati Region et al., Case no. 2008-1234
U.S. Sixth Circuit Court of Appeals
State of Ohio v. David B. Clinkscale, Case no. 2008-1012
10th District Court of Appeals (Franklin County)
Death Penalty
State of Ohio v. James E. Trimble, Case no. 2005-2436
Death Penalty, Portage County
James Trimble of Portage County has appealed his convictions and death sentence for the January 2005 aggravated murders of his girlfriend, Renee Bauer, her 7-year-old son, Dakota Bauer, and Sarah Positano, a Kent State University student he held hostage and ultimately shot during a subsequent standoff with police.
Trimble asks the Supreme Court to reverse his convictions or reduce his death sentence to life imprisonment based on 15 alleged legal and procedural errors during his trial in the Trumbull County Court of Common Pleas.
Among those assignments of error, Trimble’s attorneys assert that:
- The trial court should have granted a change of venue in the case because it received extensive and ongoing media coverage in both area daily newspapers and on all of the commercial television stations serving Portage County, and thus prejudiced the pool of potential jurors.
- The trial judge failed to empanel an impartial jury by refusing to disqualify for cause a number of potential jurors whose answers on voir dire (pre-selection questioning of jury candidates) indicated that they would be predisposed to impose the death penalty if the state showed that the killings were pre-planned, regardless of mitigating evidence Trimble might present during the sentencing phase of the trial. They assert that the judge also erred by refusing to allow defense counsel to mention potential mitigating factors during voir dire, and by granting the state’s requests to disqualify for cause several potential jurors who stated that they thought they could follow the court’s instructions, but might have difficulty imposing the death penalty.
- Defense attorneys also argue that the trial judge erred by allowing the state to admit into evidence testimony by a social acquaintance of Trimble’s about a prior incident in which Trimble made disparaging remarks about Bauer while intoxicated and then went outside and fired shots into the woods with his guns; and by allowing the state to introduce as evidence and leave on display before the jury for several hours 20 firearms of various types that were owned by Trimble but not used in the murders.
Attorneys for the state respond that the trial court properly held the defendant’s motion for a change of venue in abeyance pending extensive voir dire to determine whether an impartial jury could be empanelled in Portage County. They point out that the voir dire process was conducted over a period of two weeks and covers 2,485 pages of transcript, and argue that the trial court ultimately denied Trimble’s motion for change of venue only after it was able to qualify a sufficient pool of potential jurors who either had not read or heard media reports about the case or had only a general sense of the case and indicated that they were not prejudiced against the defendant by what they had read or heard in the media
With regard to the trial court’s refusal to disqualify for cause certain jury prospects who indicated willingness to impose a death sentence, prosecutors point out that because Trimble’s attorneys did not exhaust the fifth and last of his peremptory challenges to dismiss any of the jurors who ultimately sat in his case, Trimble waived any right to later appeal the court’s denial of challenges for cause. They also contend that a review of the transcript shows that the trial judge did not abuse his discretion in finding that, after follow-up questions were answered, the jurors in question did not meet the established test for disqualification for cause which is that the juror’s views regarding the death penalty “would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.”
The state argues that the admission into evidence and display of Trimble’s firearms not used in the murders was relevant to the crimes he was charged with because they illustrated the defendant’s familiarity and skill in using guns, and the fact that most of the weapons and ammunition were recovered from a locked gun safe in the basement of his home showed that Trimble had not simply picked up a weapon and fired it, but had made deliberate decisions to select, retrieve and load the murder weapons before using them to kill his victims. Prosecutors also contend that the “other acts” evidence relating Trimble’s earlier remarks about Bauer followed by shooting guns in the woods behind his home illustrated both a motive for the crime (anger toward Bauer) and a tendency to use firearms to “blow off steam” when he was angry.
Contacts
Victor V. Vigluicci, 330.297.3850, for the state and Portage County prosecutor’s office.
Lawrence J. Whitney, 330.253.7171, for James Trimble.
Does 2004 State Law Require Doctors to Prescribe Abortion Drug Only as Indicated in FDA Approval Letter?
Nancy H. Rogers, Ohio Attorney General, et al.
v. Planned Parenthood Cincinnati Region et al., Case no. 2008-1234
U.S. Sixth Circuit Court of Appeals
ISSUE: Does R.C. 2919.123, a 2004 state law that requires Ohio doctors to prescribe the abortion-inducing drug mifepristone (RU-486) “in accordance with all provisions of federal law” that govern use of the drug: a) prohibit physicians from prescribing the drug for any patient whose pregnancy has progressed beyond 49 days; and b) bar physicians from prescribing the drug in a different dosage or under a different protocol than the dosage and protocol set forth in the original U.S. Food and Drug Administration (FDA) letter approving the drug for medical use in this country?
BACKGROUND: [NOTE: In this case, the Supreme Court of Ohio has not been asked to rule on the constitutionality of the state law in question, but only to interpret the language of that law and advise a federal court what limitations the statute places on Ohio physicians in administering or prescribing RU-486 to patients.]
In September 2000, the FDA approved mifepristone, commonly referred to as RU-486, for manufacture and use in the United States. RU-486 is a pill used in combination with another drug to induce an abortion without surgical intervention. The FDA’s approval was based on clinical trials in which patients whose pregnancies had advanced no longer than 49 days received an oral dose of 600 mg of RU-486, followed two days later by an oral dose of 0.4 mg of a second drug, misoprostol.
Once a drug has been approved by the FDA, in the absence of additional state-level regulations, doctors are permitted to prescribe that drug in different medical situations and to employ different dosages and delivery protocols for the drug than those initially approved by the FDA. This practice, known as “off-label” use, is not contrary to federal law or FDA regulations. As a result of research conducted following FDA approval of RU-486, an “off-label” protocol was developed in which doctors administer a 200 mg oral dose of RU-486 to a patient followed three days later by 0.8 mg of misoprostol administered vaginally. This regimen, known as the Schaff protocol, was adopted by the Planned Parenthood clinics in Cleveland, Columbus and Cincinnati and by other providers of abortion services in Ohio. Under the Schaff protocol, the combined RU-486-misprostol drug regimen can be administered to patients whose pregnancies have progressed up to a maximum of 63 days.
In 2004, the Ohio General Assembly enacted R.C. 2919.123, a new section of state law that barred Ohio physicians from administering or prescribing RU-486 to induce an abortion unless the drug was provided to a patient “in accordance with all provisions of federal law that govern the use of RU-486.” The statute defined “federal law” as “any law, rule or regulation of the United States or any drug approval letter of the (FDA) ... that governs or regulates the use of RU-486 for the purpose of inducing abortions.” Under R.C. 2919.123, the prescription or administration of RU-486 by a doctor to a patient in a manner not consistent with “federal law” is a criminal offense punishable as a felony.
Before the new law took effect, Planned Parenthood of Southwest Ohio and other plaintiffs filed suit in federal district court seeking a temporary injunction to prevent state officials or local prosecutors from enforcing it. Their suit alleged four different legal bases on which the statute was unconstitutional and therefore unenforceable. Following a two-day hearing, the district court granted a temporary injunction barring enforcement of the statute on the basis that it lacked an exception allowing off-label use of RU-486 where such use was necessary to protect the life or health of a patient. The court held that such an exception was mandatory in any state law limiting abortion rights. The state appealed. On review, the U.S. Sixth Circuit Court of Appeals ruled that the district court’s injunction was overly broad and remanded the case with instructions to the district court to craft a more limited injunction.
On remand, Planned Parenthood asked the district court to enter summary judgment holding that the entire statute was unconstitutionally vague because its language requiring doctors to comply with “all provisions of federal law” did not make it clear what specific standards they must follow in order to prescribe or administer the drug without risking criminal prosecution. The district court agreed and entered summary judgment enjoining the state from enforcement of the entire statute. The state appealed again. Rather than affirming or reversing the district court’s ruling, the Sixth Circuit asked the Supreme Court of Ohio, as the ultimate interpreter of state statutes, to review R.C. 2919.123 and answer two questions: 1) whether the statute mandates that Ohio doctors may only prescribe RU-486 to induce abortions in patients whose pregnancies have progressed no more than 49 days; and 2) whether the statute mandates that Ohio doctors may only prescribe the RU-486-misoprostol drug regimen if they employ the same dosages and follow the same delivery protocol set forth in the printed instructions referenced in the FDA’s original approval letter.
Attorneys for the state argue that the statute is not vague or ambiguous and clearly requires physicians administering RU-486 to do so according to the specific standards spelled out in the 2000 FDA approval letter. They say the approval letter specifies that the drug is approved only for patients whose pregnancies have progressed no longer than 49 days, and that the drug must be administered according to the treatment protocol set forth in the “final printed labeling” adopted by the FDA, which specifies a 600 mg oral dosage to be followed two days later by a 0.4 mg oral dose of misoprostol.
Attorneys for Planned Parenthood and the other respondents argue that while the FDA approval letter references use of RU-486 “through 49 days’ pregnancy,” the letter does not include language prohibiting use of the drug or stating that it is contraindicated after 49 days. Because it is standard practice for doctors to make off-label use of a drug based on evidence from post-approval research studies, they argue, the general language in the FDA’s RU-486 approval letter does not convey to physicians a notification that they would risk a felony conviction by prescribing the drug for a patient whose pregnancy was beyond 49 days’ duration. They also point to language added to another drug statute by the General Assembly that specifically bars any Ohio physician from writing off-label prescriptions for certain anabolic steroid drugs for purposes such as body-building. They assert that if the legislature had intended to place a strict 49-day limitation on the time period within which RU-486 may be prescribed, it could have done so by placing similar straightforward language in the body of R.C. 2919.123.
With regard to the second certified question regarding mandatory compliance with the 600 mg dosage and oral delivery protocol used in the drug’s clinical trials, the respondents argue that the FDA approval letter does not include a mandated treatment protocol or dosage regimen, but only makes general reference to the printed labeling included when the drug is dispensed, in which the 600 mg dosage and protocol are “recommended.” They contend that the approval letter’s reference to a “recommended” dosage that appears in a separate document cannot be interpreted as a mandatory “provision of federal law” with which a prescribing physician must strictly comply under pain of criminal prosecution.Contacts
Jennifer L. Branch, 513.621.9100, for Planned Parenthood of Southwest Ohio et al.
Benjamin C. Mizer, 614.466.8980, for the State of Ohio.
Did Court’s Substitution of Alternate for Ill Juror During Deliberations Violate Defendant’s Right to Fair Trial?
State of Ohio v. David B. Clinkscale, Case no. 2008-1012
10th District Court of Appeals (Franklin County)
ISSUE: After the guilt phase of a capital murder case has been submitted to the jury and jurors have begun their deliberations, does a trial court judge violate the defendant’s constitutional rights to trial by jury and to a fair trial when the judge: 1) meets privately with a jury member to discuss an alleged health emergency without notifying the parties or giving them a chance to question the juror or propose alternatives to excusal; and 2) excuses the juror and replaces her with an alternate during deliberations in violation of a rule of criminal procedure?
BACKGROUND: David Clinkscale of Columbus was tried and convicted in 1998 for the aggravated murder of Kenneth Coleman and the attempted murder of Coleman’s wife, Todne Williams. Williams, who was shot three times, survived the attack and subsequently testified that Clinkscale was the person who shot her and her husband during a robbery. The charges against Clinkscale included death penalty specifications, however the jury recommended and the court imposed a sentence of life imprisonment without the possibility of parole.
In 2004, the U.S. Sixth Circuit Court of Appeals vacated Clinkscale’s conviction and ordered that he receive a new trial based on a finding that he had received ineffective representation by his trial attorneys.
A second trial was conducted in the Franklin County Court of Common Pleas in September 2006. Williams again appeared as the state’s primary witness and identified Clinkscale as her husband’s killer. At the conclusion of arguments, at approximately 2 p.m. on a Friday, the jury received its instructions from the trial judge and retired to deliberate. Later in the afternoon the foreman sent a note to the judge stating that one juror “was not comfortable returning a guilty verdict based on the testimony of a single witness” and that juror did not believe “a guilty verdict could ever be returned without more evidence.” The note asked the court for guidance. Without responding to the inquiry, the judge dismissed the jurors for the weekend and told them they would receive additional instructions on Monday.
When court convened the following Monday, a different judge presided over the proceedings because the first judge was out of the city. Before court was convened, a member of the jury who had indicated during jury selection that she had suffered a previous heart attack told the bailiff she was having heart palpitations and wished to be excused so she could visit her doctor. The substitute judge met with the juror in chambers, outside the presence of the prosecutor or defense counsel, and sua sponte (on her own initiative) gave the juror permission to leave.
The judge then convened the court. With the defendant, counsel and the jurors in the courtroom, the substitute judge stated that a member of the jury had been dismissed for a medical issue and that the first alternate juror would be sworn in to replace her. Without objection by the state or the defendant, the alternate juror was then sworn in. The judge then gave the jury a supplemental instruction responding to the “one witness” question that had been raised on the preceding Friday, and instructed the reconstituted jury that they must disregard their previous discussions about the case and begin an entirely new deliberation. Again without objection by either party, court was adjourned and the reconstituted jury retired to the jury room.
The jury returned guilty verdicts on all counts and specifications, and Clinkscale was re-sentenced to a prison term of from 53 years to life. Clinkscale appealed, asserting among other claims that the substitute judge’s private meeting with and unilateral excusal of the ill juror without prior consultation or consent by defense counsel was a violation of Ohio’s rules of criminal procedure that required that a mistrial be declared and his convictions be vacated. The 10th District Court of Appeals voted 2-1 to affirm the trial court’s verdict and sentence. Clinkscale sought and was granted Supreme Court review of the 10th District’s rulings with regard to the excusal and appointment of the alternate juror.
Attorneys for Clinkscale argue that the actions of the trial court were contrary to a rule of criminal procedure that was in effect at the time of the trial. They cite the specific requirement in former Crim.R. 24(G)(2) that in trials where the death penalty could be imposed, “No alternate juror shall be substituted during any deliberation.” They assert that the substitution of the alternate juror in this case clearly violated the rule, and that such a violation invalidates any verdict subsequently issued by the reconstituted jury. They also point to prior court decisions holding that ex parte (outside the presence of both parties) communications between a judge and juror during a trial violates a defendant’s fair trial rights and is itself sufficient to require declaration of a mistrial.
Attorneys for the state argue that defense counsel had a clear opportunity to move for a mistrial based on the judge’s private meeting with the ill juror or to object to the substitution of the alternate juror before he was sworn in. They note that, at that point in the trial, the judge could have pursued remedies to her mistake by obtaining counsel’s prior consent to the substitution, by seeking the parties’ agreement to proceed with an 11-member jury or even by pursuing the return of the original juror to court after she saw her doctor. By failing to object in a timely manner, they argue, Clinkscale forfeited his right to later appeal the court’s action unless he can show that the juror substitution constituted “plain error” so serious that it determined the outcome of the trial. They argue that defense counsel in this case have made no showing of plain error, and therefore the Court should affirm 10th District’s rulings rejecting Clinkscale’s appeal.
They also point out that former Crim.R.24(G)(2), which has since been amended to permit the action taken by the substitute judge in this case, was in conflict with R.C. 2945.29, a provision of the Ohio Revised Code that requires courts to replace a seated juror who cannot continue with an alternate juror at any point “prior to the conclusion of the trial.” They also note that R.C. 2313.37 (D) allows for juror substitution in a capital case up to the beginning of penalty-phase deliberations. When a procedural rule conflicts with a statutory provision, they argue, the statute takes precedence and therefore the trial court’s actions should be upheld.
Contacts
Steven L. Taylor, 614.462.3555, for the state and Franklin County prosecutor’s office.
William S. Lazarow, 614.228.9058, for David Clinkscale.
These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.