LOGAN – Attorneys for a Logan woman who’s charged with the murder of her boyfriend’s 2-year-old daughter have filed an avalanche of defense motions in her case recently – including one that seeks to remove the death penalty as a possible sentence for 28-year-old Destani Neel.
This motion, filed Sept. 3 in Hocking County Common Pleas Court by attorneys Kirk A. McVay and Andrew T. Sanderson of the Ohio Public Defender’s Office, argues that Ohio’s death penalty statute is not only unconstitutional, but also violates multiple U.S. obligations under international law.
Though the Ohio Supreme Court has upheld the legality of the state’s death penalty statute in a 1984 decision, the attorneys note, the high court did not consider or rule on the international law arguments put forth in the new motion. They add that the defense team has a duty to raise the international law issue for possible later review by a federal court, “even though this court might deny this motion.”
Neel is facing a charge of aggravated murder with the specification that the victim was under 13 years old, as well as two counts of murder, one count of felonious assault, and two counts of endangering children. The first count carries a potential death penalty due to the victim age specification.
On Jan. 8, police and emergency personnel responded to a 911 call from a Logan apartment complex, reporting that a child had stopped breathing. The girl, Arianna Jade Starkey, was transported to the Hocking Valley Community Hospital and later to Nationwide Children’s Hospital in Columbus, but did not survive. Authorities allege that her death was the result of injuries from an assault, and that Neel and the child’s father, Austin Starkey, tried to conceal this fact.
In July Starkey, who had been facing charges of murder, felonious assault, permitting child abuse, tampering with evidence, and endangering children, took a plea bargain and was sentenced to 10 to 15 years in prison. He has agreed to testify against Neel if needed.
In their motion relating to the death penalty, McVay and Sanderson offer a number of arguments, some of them well known, purporting to show that Ohio’s death penalty is unconstitutional. These include claims that the death penalty is cruel and unusual punishment when it is imposed in an arbitrary and unequal fashion; that Ohio’s death penalty statute is “unconstitutionally vague,” leading to arbitrary imposition of the death penalty; that it imposes an “impermissible risk of death” on capital defendants who choose to exercise their right to a jury trial rather than taking a plea; that it leaves too much room for juries to make arbitrary or capricious sentencing decisions; and that Ohio courts are failing to provide the data on death-penalty-eligible cases and their outcomes that would allow for a meaningful review of whether the death penalty is being applied fairly.
On the international law question, the motion begins by observing that “A treaty made by the United States is the supreme law of the land… Where state law conflicts with international law, it is the state law that must yield.”
International agreements to which the United States is a signatory, it notes, include the United Nations’ International Covenant on Civil and Political Rights; the International Convention on the Elimination of All Forms of Racial Discrimination; and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The defense attorneys maintain that Ohio’s death penalty law violates each of these.
Though the U.S. Senate, in ratifying these agreements, has added various “conditions, reservations and understandings” limiting their application, McVay and Sanderson contend that these modifications over-reach the Senate’s legal authority under both the U.S. Constitution and the Vienna Convention on the Law of Treaties, and “cannot stand.” Ohio’s death penalty statute also contravenes “customary international law” as represented in the Universal Declaration of Human Rights, they say.
In addition to the motion regarding the death penalty, the defense attorneys on Sept. 3 filed more than 30 other motions, having to do with jury selection, the handling of evidence, and what can be shown and said to the jury during different phases of the trial.
One seeks to have potential jurors questioned individually without other members of the jury pool present, to try to uncover any biases that would make them inappropriate as jurors on a capital case. In a case that has already generated publicity and will likely continue to do so, McVay and Sanderson suggest, “Questioning prospective jurors en masse about their knowledge of the case risks tainting the entire jury pool.”
They have also asked the court to order all prospective jurors to complete a detailed questionnaire under oath before the voir dire process of juror interviewing begins; to prohibit the judge and prosecutors from referring to the trial (as opposed to the sentencing deliberations) as the “guilt phase”; and to prohibit the publication of names, addresses and phone numbers of prospective and empanelled jurors.
On evidence issues, they have filed motions asking the court to order all law enforcement officials involved in the case to turn over all information they obtain during investigation to the prosecutor; to order the prosecutor and law enforcement officials to properly preserve and catalog all evidence; and to make all the state’s evidence available to the defense for inspection and, if need be, scientific testing by defense experts.
The defense has also moved to instruct the jury to consider mercy during the trial’s mitigation phase; to excuse any potential jurors who would automatically sign a death verdict if the defendant is found guilty; to prohibit the prosecution from using any of a long list of “prejudicial arguments and themes”; to exclude evidence relating to other crimes or wrongdoing; to prohibit victim impact evidence; and to exclude from evidence photos of the deceased.
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