Death sentence affirmed; confrontation clause

The Ohio Supreme Court has rejected the appeal of Calvin McKelton, who was sentenced to death in 2010 in connection with the murders of Margaret Allen and Mick Evans.

Allen, a Cincinnati-area attorney who had formerly represented McKelton before entering into a relationship with him, was found dead near a Cincinnati park in July 2008. Evans, who may have witnessed or been an accomplice to Allen's murder, was found dead in March 2009. McKelton was charged with each murder, including two death specifications for Evans (one for murdering in order to escape detection, and one for murdering to prevent testimony in a criminal proceeding). The jury convicted McKelton of both murders, and McKelton was sentenced to death on the second specification.

One of the many issues covered by the Court in this appeal is whether the trial court's admission of statements by Allen violated the confrontation clause of the Sixth Amendment. In particular, many otherwise-hearsay statements of Allen--including but not limited to statements relating to a prior history of domestic violence by McKelton against Allen--were admitted over McKelton's objection. The Court held that this admission did not violate the confrontation clause because of the "forfeiture-by-wrongdoing" exception, under which the defendant's wrongdoing effects a forfeiture of his right to confront the witness.  The Court ruled that the history of domestic violence by McKelton against Allen supported an inference of McKelton's purpose to kill Allen in order to prevent her from testifying against him in other domestic violence prosecutions.

Two justices dissented. Justice William M. O'Neill would have affirmed McKelton's guilt, but reversed the imposition of the death penalty on the grounds that he did not have adequate counsel in the sentencing phase. In particular, Justice O'Neill wrote that "the record shows that McKelton’s attorneys did not hire, but should have hired, a mitigation specialist to investigate his background, in addition to one or more mental-health professionals if the mitigation specialist’s investigation suggested a need." He further highlighted the fact that one of McKelton's three lawyers was granted leave to withdraw shortly before trial, and that while the remaining two lawyers were both certified by the Court as lead counsel in capital cases, the only defense investigator found in the record had worked primarily with the attorney who had withdrawn.  Justice Paul E. Pfeiffer joined substantially all of Justice O'Neill's dissent.

On a personal note, I worked with Allen briefly in about 2008. I was a law clerk, and she was trying a case in our courtroom; we worked together on jury instructions. She was friendly, professional, and an excellent advocate for her client. The bar was certainly shocked and saddened when she died.