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Richard Edwin FOX

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Kidnapping - Rape
Number of victims: 1
Date of murder: September 26, 1989
Date of birth: February 3, 1956
Victim profile: Leslie Renae Keckler (female, 18)
Method of murder: Asphyxia from ligature strangulation and multiple stab wounds
Location: Wood County, Ohio, USA
Status: Executed by lethal injection in Ohio on February 12, 2003
 
 
 
 
 
 
clemency report
 
 
 
 
 
 

Summary:

Fox was convicted of aggravated murder and kidnapping for luring Leslie Keckler, an 18 year old freshman at Owens Technical College, to an interview in Bowling Green, for a nonexistent restaurant-supply sales job.

He convinced her to get into his car under the pretext of showing her the sales route and drove to a rural area north of the city. She rejected his sexual advances and fought him, then tried to open the car door.

He pulled her back, pulled her coat over her head and stabbed her six times in the back. He then drove to a secluded road where, he told police, he strangled her with a rope "just to make sure she was dead."

Her body was found four days later in a ditch. The key evidence against Fox included bloodstains in his car and a knife, which prosecutors said was used to kill Leslie.

Citations:

State v. Fox
, Ohio App. 6 Dist. (1997) (Not Reported in N.E.2d).
State v. Fox, 632 N.E.2d 134 (Ohio 1994).
State v. Fox, Ohio App. 6 Dist. (1992) (Not Reported in N.E.2d).

Final Meal:

A cheeseburger with lettuce, pickle, onion, tomato, ketchup, mustard and mayonnaise along with french fries and a Pepsi.

Final Words:

No final statement.

ClarkProsecutor.org

 
 

ProDeathPenalty.com

The Wood county prosecuting attorney indicates that Richard Fox's execution date is set for February 12, 2003. Fox has exhausted all of his appeals. He will be executed unless governor Taft of a court intervenes.

Fox was convicted in the 1990 kidnapping and murder of 18-year-old Leslie Keckler, a student at Bowling Green State University.

Fox is scheduled to be executed Feb. 12 for the 1989 murder of a college student he had lured to a nonexistent job interview. When the victim, Leslie Keckler, rejected Fox's sexual advances and tried to get out of the car, Fox stabbed and strangled her, prosecutors said.

Police were led to Fox when they remembered a similar incident involving a Bowling Green State University student who had escaped from a man who had lured her into his car under a similar pretext. The key evidence against Fox included bloodstains in his car and a knife, which prosecutors said was used to kill Leslie.

In 1994 the U.S. Supreme court refused to hear the case. Attorneys for Fox argued Wood county prosecutors shouldn't have released a confession Fox gave to police shortly after his arrest.

Prosecutor Alan Mayberry says frustration over the death penalty appeals process in cases such as Fox's, is what prompted Ohio voters to pass a state issue that sets a constitutional amendment on the number of appeals filed by the condemned. A 3 judge panel had sentenced Fox to die in the electric chair. Since that is no longer used, Fox will be executed by lethal injection.

UPDATE: Convicted murderer Richard E. Fox should find no mercy from Gov. Bob Taft, the Ohio Parole Board said. The board unanimously recommended that the governor reject Fox’s petition for clemency, allowing his execution to proceed as planned on Feb. 12. Fox was convicted in the Sept. 26, 1989, murder and kidnapping of Leslie Renae Keckler, an 18-year-old Owens Technical College freshman lured to a fraudulent job interview.

"Only now at the midnight hour has Fox had any type of remorse and found God," said new Wood County Prosecutor Raymond Fischer. "He has had eight or nine different stories of what happened. Even a couple of parole board members said he was still glib in his statements to them just two weeks ago."

"His story has changed eight times since he first claimed an alibi," said Kim Norris, spokesman for Attorney General Jim Petro. "He’s still blaming the victim, saying she didn’t realize it was a date when he stalked her and got her information off a job application," spokesman Norris added. "Clearly they were not," she said. "These women were duped into getting into a vehicle with him. They were not dates. His apologies continue to ring hollow." Jeff Sutton, one of Fox’s attorneys said, "It was fraud to be sure, but it was not designed to commit sexual assault, certainly not to commit murder."

The daughter of Fox asked the Ohio Parole Board to recommend that Gov. Bob Taft spare the life of the man taken from her by police 13 years ago. "In killing him, you are doing exactly what he did - taking another life," said Jessica Fox, who was 6 at the time her father was arrested. "He has asked for forgiveness for what he has done," she said.

"He is a changed man who would not even think about doing anything he has done in the past." However, the family of Leslie Renae Keckler, said the death-row inmate can expect no forgiveness from them.

They asked the state to restore the victim’s dignity by carrying out Fox’s execution as scheduled on Feb. 12. Ms. Keckler’s family told the board Fox’s apologies are insincere and that he continues to partially blame her for what happened that night. "From the first time Fox saw Leslie, he thought of her as something less than a human being created by God," said her younger brother, Chad. "He thought of her as a toy, a toy that he could play with and manipulate to amuse him, and when his toy no longer pleased him, he destroyed her, then threw her away."

Gov. Bob Taft rejected Richard E. Fox’s plea for mercy one week before the state is scheduled to put him to death for killing an 18-year-old college student 13 years ago. "There is no doubt that Mr. Fox is guilty of brutally murdering Leslie Keckler," said Mr. Taft. "The claims of error with respect to the imposition of the death sentence advanced by attorneys for Mr. Fox have been reviewed and rejected by state and federal courts. There are no discussions in this case that would indicate any manifest injustice," he said. "I find that the aggravating circumstances and brutality of Mr. Fox’s crime outweigh any mitigating factors he has presented. I can find no compelling reason to grant clemency."

Fox, a Tontogany native, is scheduled to be executed at 10 a.m. Wednesday at the Southern Ohio Correctional Institution near Lucasville. He would be the sixth man executed since Ohio resumed carrying out the death penalty in 1999 and the first from northwest Ohio.

He was convicted of aggravated murder and kidnapping for luring Leslie, a freshman at Owens Technical College, to an interview in Bowling Green on Sept. 26, 1989, for a nonexistent restaurant-supply sales job.

He convinced her to get into his car under the pretext of showing her the sales route and drove to a rural area north of the city. When she rejected his advances, he stabbed her six times and strangled her.

Fox’s attorneys have argued that the murder was out of character for Fox, that he had no criminal record prior to the killing, and has been a model prisoner while on death row.

The state, however, presented Fox as a predator who started out sexually harassing young job applicants and progressed to fabricating job interviews to get women alone to fulfill a long-held rape fantasy. "The Ohio Adult Parole Board gave a complete review of the matter and rendered an 8-0 unanimous decision to recommend denying clemency to Fox," said Wood County Prosecutor Raymond Fischer. "Governor Taft indicated that he spent considerable time reviewing the entire record in Mr. Fox’s case. We believe that due process has been afforded to Mr. Fox and to the family of Leslie Keckler," Mr. Fischer said. Leslie’s father, Lester, and two brothers, Chad and Brad, are expected to witness the execution. Fox’s daughter, Jessica, 6 years old when her father was imprisoned 13 years ago, also plans to be there.

 
 

Richard Edwin Fox (February 3, 1956 – February 12, 2003) was executed by the state of Ohio for the kidnapping and murder of an 18-year-old college student whom he lured to her death with the fake promise of a job interview.

A three-judge panel convicted Fox of aggravated murder and kidnapping and sentenced him to death on June 27, 1990. He spent 12 years and 7 months on death row as his case was appealed through the state and federal court systems.

The crime

The crime for which Fox paid with his life was his first criminal conviction, but Fox had been increasingly aggressive toward women in the months leading up to the murder of Leslie Renae Keckler, testimony at his trial revealed. In fact, it was the victim of a previous encounter with Fox who helped police break the case.

On September 14, 1989, Leslie Keckler applied for a waitress job at a Bowling Green restaurant. Fox worked there as a grill cook. As Keckler filled out her job application, Fox pointed out Keckler to a coworker and said "I'd like to have some of that", the coworker testified later. Fox gleaned Keckler's telephone number from the application and asked her to meet him for an interview for a restaurant supply sales job.

On September 26, Keckler went to a local motel where Fox had scheduled the job interview. Keckler's boyfriend saw her just before she left and Keckler told him she might be gone for two or three hours. When Keckler did not come home that night, her boyfriend and her mother filed a missing persons report with police. Police found the car Keckler had been driving abandoned at a local mall.

Four days later, two boys riding bicycles found Keckler's body in a rural drainage ditch. Keckler was still wearing her new black dress and leather jacket. However, a clasp on her brassiere was broken, her belt was unbuckled, two dress buttons were missing, and her pantyhose was torn in the crotch. Aside from a nearby shoe, police found no other evidence at the scene.

Wounds

The autopsy revealed that Keckler had died as a result of asphyxia from ligature strangulation and multiple stab wounds. She had been stabbed six times in the back; three stab wounds penetrated her lungs. Her right wrist had a deep defensive wound gash, and her face had bruises on her left eye, upper lip, and nose consistent with blunt force injury. The coroner found no signs of sexual assault.

Previous attack

When the story of Keckler's murder was publicized, another Bowling Green woman came forward with a nearly identical story. She had applied for work at a restaurant and received an invitation for an interview for a different position from a man calling himself "Jeff Bennett" but who was later positively identified as Fox. He asked her to come to a local motel—the same one where Keckler was headed—to discuss the job opportunity.

After meeting Fox, she agreed to accompany him in his car that evening to discuss the job. They drove for a while and then parked. Fox began making suggestive comments and told the woman he thought her dress was too long. She realized that she had been duped and told Fox she was not interested in any job.

In response, Fox asked what the woman would do if someone "pulled a knife" on her and asked her for money, or asked her "to do other things". At that, the woman jumped out of the car while Fox tried to grab her and said "come back" and that he "wasn't finished with [her] yet".

She made a safe getaway, but did not report the incident to police until after Keckler disappeared. The woman provided police with a sketch of her assailant.

Investigation

A check of the employees at the restaurants where the two women applied for jobs revealed an interesting coincidence: Fox was employed at both places. Other circumstantial evidence made Fox their prime suspect. On October 2, an acquaintance of Fox told police that the composite sketch resembled Richard Fox of Tontogany. Police confirmed that Fox matched the description of "Bennett" and Fox's car also matched the description of "Bennett's" car.

That same day, police secured a search warrant for Fox's car and found some "suspicious items". They asked Fox to come to the station to answer a few questions and he voluntarily accompanied them.

Before Fox was placed under arrest, he admitted that in early May he had worked at a restaurant where his first intended victim had applied for a job, that he met her at the motel, and that he took her for a drive and discussed her skirt length.

Arrest and admissions

After his arrest and after being advised of his Miranda rights, Fox admitted he knew Keckler and claimed they had met and talked at the restaurant where he worked and met again a couple of days later. He described his encounter with Keckler at the motel on September 26 as a date. Later, at the mall, "he saw Leslie and they talked and ended up taking a drive in his car". Fox said that he and Keckler parked, and "things were getting warmed up". However, "then Leslie did not want to participate".

Unwittingly, Keckler triggered something in Fox's psyche as she tried to get away from him. She called him "an asshole" and started to get out of the car. Fox told detectives, "no one calls me an asshole". Fox grabbed the woman by the coat as she was standing up to get out of the car and pulled her back in, then he pulled the coat up over her head.

Fox told police he got a knife out of the glove compartment and stabbed Keckler in the back, after which he got a rope out of the trunk "just to make sure she was dead" and strangled her. He took police to a rural location outside Bowling Green where he dumped Keckler's purse and other property.

Clemency hearing and execution

At Fox's clemency hearing where the parole board listens to arguments why it should or should not recommend that the governor commute a death sentence, it was revealed that Fox had written a letter apologizing to the Keckler family for his actions:

"If I could, I would sit down with my victim's family and try and share how sorry I am, how I have changed and how I wish I could change what happened. I am sorry, and I must pay for my actions, if it be with a life in prison or if it be by my life, I will do what is required as I know I must pay for my mistakes!"

Neither that letter nor his teenage daughter's tearful plea not to be made an orphan (her mother had earlier committed suicide) swayed the parole board. Fox made no statement before he was injected with the deadly chemicals. The execution took a total of 13 minutes from the time the first chemical was started until Fox was declared dead.

Wikipedia.org

 
 

Man Executed For Killing College Student

By Liz Foreman - Cincinnati Enquirer

AP Febrary 12, 2003

A man who lured a college student to her death with the promise of a job was executed Wednesday. Richard E. Fox, 47, made no final statement before being killed by injection at the Southern Ohio Correctional Facility. He was pronounced dead at 10:13 a.m. It was the state's sixth execution since Ohio resumed the death penalty in 1999.

Fox kidnapped, stabbed and strangled Leslie Keckler, 18, of Bowling Green, on Sept. 26, 1989. Her body was found four days later in a ditch near the northwest Ohio city.

Fox had confessed and was convicted in 1990 of aggravated murder and kidnapping. Students from Roman Catholic high schools in Cleveland and Cincinnati joined anti-death penalty protesters outside the prison in bitter cold Wednesday morning. School officials said 125 students made the trip. "It should be God who decides when someone dies," said Tiera Carson-Nicholson, 16 and a sophomore at Trinity High School in suburban Cleveland.

Gov. Bob Taft last week refused to grant clemency, saying there was no doubt that Fox was guilty. Greg Meyers, chief of the Ohio Public Defender's death penalty section, said then that there were no more legal issues to appeal.

Andrea Dean, spokeswoman for the Ohio Department of Rehabilitation and Correction, said Fox had spent the hours leading up to the execution with family members and that he was upbeat.

He went to sleep about 1 a.m. and woke around 4:20 a.m., Dean said. He did not take a shower or eat his breakfast of coffee, apple juice, toast, dry cereal and peanut butter and jelly, Dean said. Dean said Fox had been compliant and spent time with spiritual advisers after being moved to Ohio's death house Tuesday from the Mansfield Correctional Institution. On Tuesday, Fox ate his requested meal of a cheeseburger with lettuce, pickle, onion, tomato, ketchup, mustard and mayonnaise along with french fries and a Pepsi, Dean said.

The injection Fox received consisted of sodium pentothal, which induces unconsciousness; pancuronium bromide, a muscle relaxant that stops breathing; and potassium chloride, which stops the heart.

Authorities said Fox found Keckler, a student at Owens Community College near Toledo, through an application she filled out at the restaurant where he worked. After an initial meeting in hotel lobby, Keckler got into Fox's car so that they could check out businesses where supplies could be sold.

In a rural area outside of Bowling Green, Fox started making advances. Keckler fought him and tried to open the car door. But he pulled her back, pulled her coat over her head and stabbed her six times in the back. He then drove to a secluded road where, he told police, he strangled her with a rope "just to make sure she was dead." Fox had lived in the northwest Ohio town of Tontogany.

Prosecutors said he had repeatedly used deception to lure women in the years before the murder. However, his attorneys said he used trickery to meet women, not to kill them. His attorneys argued that Fox was not the "worst of the worst" criminals for whom the death penalty is intended. They also said he should have been re-sentenced because guidelines used in his case later were declared flawed by the Ohio Supreme Court. The high court refused to delay the execution to hear the sentencing issue.

 
 

Fox Declines to Apologize Before Being Put to Death

By James Drew - Toledo Blade

February 14, 2003

LUCASVILLE, Ohio - Richard E. Fox had said, if he could, he would personally apologize to the family of the 18-year-old college freshman from Arcadia he murdered 13 years ago. But when given that chance yesterday moments before being put to death for killing Leslie Renae Keckler, the 47-year-old Tontogony native did not take advantage of the opportunity.

Fox went to his death without looking at or talking to the three members of the Keckler family witnessing his execution. He was pronounced dead at 10:13 a.m. from a combination of three drugs that sedated him, shut down his lungs, and then stopped his heart.

"The family feels justice has been served, that Leslie and my mother can now be at peace," said Miss Keckler’s brother, Chad. The family says it believes Linda Keckler died from a broken heart after the death of the daughter she adopted as an infant. Fox became the sixth inmate executed by Ohio since it resumed carrying out the death penalty in 1999 and the fourth in less than 12 months. He marked the first execution of a northwest Ohio resident in more than 44 years.

Fox - standing 6 feet, 1 inch tall and weighing 285 pounds - was escorted into the execution chamber at 9:58 a.m. and stood briefly on a stool to get onto the injection gurney. He kept his eyes closed as members of the execution team strapped him down. The warden clutched a microphone as a team member at 10:02 a.m. prepared the injection of the drugs. Fox opened and closed his eyes several times.

At 10:03 a.m., the warden and an execution team member standing near Fox’s head moved closer to Fox. Separated from the inmate by a glass window, the victim’s maternal aunt, Angela Balderson, held hands with Miss Keckler’s father, Lester. He and his son, Chad, wore gray suits and appeared somber. On the left side of the chamber, the three witnesses Fox chose - Greg Meyers of the state Public Defenders’ Office, brother-in-law Jerry Wiles, and the Rev. Robert Henning - showed no emotion. At 10:05 a.m., the warden held the microphone over Fox’s head and asked: "Fox, do you have any last statement you’d like to make?’’ "No sir,’’ Fox replied.

Fox appeared to breathe regularly at 10:06 a.m., but a minute later he took some visible breaths and his abdomen and chest began to rise up and down. His lips moved, but no words were audible. By 10:08 a.m., Fox’s chest and abdomen did not move. The warden and the execution-team member at Fox’s head watched him intently and at 10:10 a.m., Ms. Balderson dabbed her mouth. There was no sound in the execution chamber. At 10:12 a.m., an execution-team member closed the curtain, and Mr. Henning bowed his head. The curtain was reopened as the warden declared the time of death. Fox’s face and arms were drained of any color.

Fox spent the last few hours of his life at the Southern Ohio Correctional Institution with his daughter, Jessica, who was 6 years old when her father was arrested in 1989. Now 20, she had planned to watch her father die but decided not to as the final hour approached. "Together, the decision was simply, ‘Let us leave in a way that the last picture memory in your mind is one of a warm and loving father, not a person strapped down like an animal to an injection execution table,’" Mr. Meyers said. Andrea Dean, spokesman for the Ohio Department of Rehabilitation and Correction, described Fox’s mood in the hours before his execution as "upbeat," although he rejected the standard prison breakfast brought to him.

Fox, a short-order cook, had gotten the phone number of Miss Keckler, a student at the former Owens Technical College, from a job application at a restaurant where he worked. He lured her to an interview in Bowling Green for a nonexistent restaurant-supply sales job and convinced her to get into his car under the pretext of showing her the sales route. He then drove her to a rural area near his home in Tontogany. According to what he later told police, Miss Keckler rejected his advances, called him a derogatory name, and tried to get out of the car. He stabbed her six times with a knife he used to kill rabbits. Then he strangled her with a nylon rope and left her body in a deep drainage ditch.

Mr. Meyers said Fox chose not to make a personal statement to the Keckler family because he felt prior comments of remorse had been received as insincere. "Richard committed a horrible crime," he said. "He was not a horrible man. He went to his death with faith and with deep sorrow and apologies to Miss Keckler’s family. ... We know on a human level that can ring hollow. Richard Fox, in his own way, was a deeply moral man."

When he died, Fox took with him any information, if he had any to offer, on the death of his estranged wife, Kim Swinehart Fox, in 1983. Shortly before their final divorce hearing, Mrs. Fox was found dead with her arms and head over the side of a bathtub in her Oregon apartment, an apparent suicide. Her wrists had been slit and blood was found in the bathtub, but the coroner determined she died from asphyxiation as a result of neck compression, not blood loss.

Ms. Swinehart’s family and Oregon police had hoped Fox might provide information as his execution approached. He did not, maintaining his innocence of any murder other than that of Miss Keckler to the end.

"It was a terrible thing he did to take [Miss Keckler’s] life, but for us to take his life only makes another terrible thing," said Sister Marian Durkin, a nun at St. Augustus of Richfield near Cleveland who was among the protesters outside the prison walls as Fox’s execution took place. "We prayed for [the Keckler family] last night," she said. "We prayed for her, but we just really believe that he needs prayers too."

 
 

Calm and Quiet, Man Executed for Killing College Student

By Liz Sidoti - Ohio Post

AP February 14, 2003

LUCASVILLE, Ohio — A calm and quiet Richard E. Fox was executed yesterday for his 14-year-old crime of kidnapping, strangling and stabbing a college student he had lured to a fake job interview.

The 47-year-old politely declined to make a final statement and kept his eyes closed as three drugs were injected into his arms in the death chamber of the Southern Ohio Correctional Facility. "No, sir," Fox answered when Warden James Haviland asked if he would like to say any last words.

No appeals were pending when Fox was brought into the death chamber at 10 a.m. Clemency was denied a week ago, and a court had refused to consider his claim that he should be resentenced. Fox was executed for killing Leslie Keckler, 18, near the northwest Ohio city of Bowling Green after she rejected his advances. "Justice has been served," Chad Keckler, one of her brothers, said later, standing in front of 12 friends and relatives holding hands. "Leslie and my mother can now be at peace."

The heavyset, balding Fox was strapped to a white-clothed gurney. He wore blue prison-issued pants with one red stripe down each leg, a white cotton shirt and brown shoes. Facing the ceiling, he avoided looking at witnesses, guards or the warden, who stood next to him. His hands were open, palms facing up and his eyes were closed, fluttering only briefly as the drugs began to take effect.

Fox swallowed once and pursed his lips. His chest and stomach rose and fell quickly more than a dozen times, the force of the air causing his lips to sputter and his chin to shudder. As his breathing appeared to slow, Haviland watched his chest closely for several minutes before nodding to the doctor to determine the time of death — 10:13 a.m.

It was the sixth execution since Ohio reinstated the death penalty in 1999. The state prisons department expects four or five more this year, although only one has been scheduled.

Fox, of Tontogany in northwest Ohio, killed Keckler, of Bowling Green, on Sept. 26, 1989. Fox confessed and was convicted in 1990 of aggravated murder and kidnapping. He told authorities he found Keckler, a student at Owens Community College near Toledo, through an application she filled out at the restaurant where he worked. They met in a hotel lobby and then got into his car to look at businesses where restaurant supplies could be sold.

Authorities say Fox stabbed Keckler six times in the back, then drove to a secluded road where, he told police, he strangled her with a rope "just to make sure she was dead." Her body was found four days later in a ditch.

Execution witnesses Chad Keckler, an aunt, Angela Balderson, and the victim's father, Lester Keckler, remained quiet and stared straight ahead through the glass separating them from the death chamber. Balderson was on the edge of her seat, clutching Keckler's father's hand.

As Fox's death was announced, she looked to the ceiling and her eyes filled with tears. Also silent and still in a second witness room were Fox's spiritual adviser, the Rev. Robert Henning, a brother-in-law, the Rev. Jerry Wiles, and defense attorney Greg Meyers.

Meyers, of the state's public defender's office, took the place of Jessica Fox, who, at her father's request, decided Tuesday night against watching him die. Fox's daughter, 20, had wanted to be with her father to the very end, but changed her mind after spending time with him Tuesday, Meyers said. "Together the decision was simply, let us leave in a way where the last picture memory in your mind is one of a warm and loving father, not a person strapped down like an animal to an injection-execution table," he said.

The injection consisted of sodium pentothal, which induces unconsciousness; pancuronium bromide, a muscle relaxant that stops breathing; and potassium chloride, which stops the heart. Outside the prison stood about 100 anti-death penalty protesters, many of them students from Roman Catholic high schools in Cleveland and Cincinnati. "It should be God who decides when someone dies," said Tiera Carson-Nicholson, 16 and a sophomore at Trinity High School in suburban Cleveland.

Fox had chosen not to take a shower or eat his breakfast of dry cereal, toast, peanut butter and jelly, coffee and apple juice, said Andrea Dean, spokeswoman for the Ohio Department of Rehabilitation and Correction.

Prosecutors said Fox had repeatedly used deception to lure women in the years before the murder. However, his attorneys said he used trickery to meet women, not to kill them. They argued that Fox was not the "worst of the worst" criminals for whom the death penalty is intended. They also said he should have been resentenced because guidelines used in his case later were declared flawed by the Ohio Supreme Court.

 
 

Why Is Richard Fox the One We Execute?

Ohioans to Stop Executions

Ohio recorded 652 murders in 1989, sentenced eight killers to death that year, and has scheduled a Wednesday February 12 execution for one who confessed, Richard Fox. State law permits execution for the worst murderers, where aggravating circumstances outweigh mitigating factors beyond a reasonable doubt. The Ohio criminal justice system singled out Richard Fox as its most deserving killer of the year because of geography and judicial error.

Fox deceived eighteen-year old Leslie Keckler into accompanying him in his car; when she rejected his advances he stabbed and strangled her in a fit of anger. He made an inadmissible confession prior to representation by counsel, disputed the kidnapping charge at trial, and acknowledged his guilt at the sentencing.

The Wood county prosecutor decided to ask for the death penalty, and the victim's family approved; prosecutors in many other Ohio counties would have sought a life term based on his personal history or if the victim's family objected to execution. Several judges on the Ohio Appeals Court and Supreme Court found that the trial panel in sentencing Fox failed to provide the required explanation of its reasoning and by law should have imposed a life term.

The trial court did not convict Fox of planning the murder, but its opinion appears to weigh such unproven premeditation to kill as a decisive aggravating factor more significant than all the mitigating evidence presented--admission of guilt, expression of remorse, testimony by numerous witnesses to prior good citizenship and community service, sensitive care for his daughter, model behavior in prison where he rescued a diabetic inmate, expert opinion about a psychological disorder, and his six year old child Jessica's well being.

Ohio Supreme Court Justice Craig Wright joined by A.W. Sweeney dissented from the decision affirming Fox's death sentence, as did Judge James Sherck on the Court of Appeals; after leaving the bench Wright opposed the execution in statements to the Ohio Parole Authority and other venues. Jeffrey Sutton, nominated by President Bush to serve on the U.S. 6th Circuit Court of Appeals, has petitioned the Ohio Supreme Court to grant Fox a new sentencing hearing.

The American Bar Association has called for a moratorium on executions because of serious defects in the criminal justice system. Non-partisan expert commissions in Illinois and Maryland concluded that their state systems have not made reliable judgments about guilt or innocence and which killers should be sentenced to death. Two days before leaving office, Republican Governor George Ryan emptied the Illinois death row and declared: "Our capital system is haunted by the demon of error . . . in determining who among the guilty deserves to die."

There is neither deterrence nor justice when our state singles out a single murderer such as Richard Fox as a symbol of our outrage at the 652 killings committed in 1989. Less than 2 per cent of murders result in death sentences for convicted killers. There were 4,830 murders recorded in Ohio from 1983-1990, 81 men were sentenced to death in those years, and since 1999 five convicts (O.1%) have been executed for those crimes.

The lengthy judicial proceedings, expensive death row incarceration, and execution of Richard Fox has cost Ohio far more than our taxpayers would have expended to imprison him for life; yet even at a time of extraordinary state and local budget deficits, money should not be the decisive factor. The cost to our collective humanity is far greater.

When Fox petitioned the Ohio Parole Authority for a life term, his daughter Jessica pleaded for his life; the victim's younger brother Chad argued for execution. Unlike the families of victims whose killers were sentenced to a life term in 1989, the Keckler family has sustained the false hope that a death row inmate's execution will somehow assuage their inconsolable grief. Murder Victim's Families for Reconciliation and Sister Helen Prejean offer compelling evidence that executing Richard Fox will create another victim-Jessica Fox-without remedying the Keckler's terrible loss. How does the state fairly determine which families see an execution and which must accept life term for the killer? The repeated political spectacle of bereaved victims and families of the condemned crying before the cameras affronts the dignity of all.

On February 12 an anonymous team of Ohio executioners will administer a lethal cocktail of three drugs to Richard Fox. Doctors taking the Hippocratic Oath swear to "Do no harm." After the drugs take effect, an Ohio doctor screened from witnesses by a curtain will certify that life has ended; the official certificate will indicate "homicide" as the cause of death.

Richard Fox should serve a life term for killing Leslie Keckler. His daughter Jessica lost her mother while a young child, and the state should not take her father's life. Vengeance belongs to the Lord, not to the victim's family, not to elected prosecutors and politicians. All the other democracies in Western Christendom have abolished the death penalty, just as they abolished slavery years before the U.S. followed. After five executions since 1999, Ohio has 207 inmates on death row and mounting opposition to a flawed legal system and to a cycle of violence that produces new victims.

Professor Howard Tolley, Jr., University of Cincinnati
January 14, 2003

 
 

Ohio Executes Fox For Murder of Young Woman

By Robert Anthony Phillips - TheDeathHouse.com

February 12, 2003

LUCASVILLE, Ohio -- Richard E. Fox was executed by lethal injection Wednesday morning for kidnapping and murdering a young woman he had lured to a fake job interview. Fox, 47, gave no last statement when he was led to the Death House at 10 a.m. He was pronounced dead from the lethal injection of drugs at 10:13 a.m. It was the first execution of 2003 in Ohio. The execution was at the Southern Ohio Correctional Facility.

No Last Appeals

There were no last-ditch appeals pending in the days before Fox’s execution. Prison officials said Fox spent his final hours watching television and reading the Bible. Fox was convicted of the Sept. 26, 1989 murder of Leslie Keckler, 18, in a hotel parking lot, where the victim had agreed to meet him for a job interview. But there was no job. When Keckler rejected Fox's sexual advances, Fox stabbed and strangled her. After killing the young woman, Fox dumped her body in a ditch in Bowling Green.

Lured To Death

The key evidence against Fox were bloodstains in his car and a knife, which prosecutors said was used to kill Keckler. Fox also admitted that he killed Keckler. Fox was also suspected of attacking another woman during a similar job interview scam, but she escaped. Fox was, at one time, an assistant manager at a restaurant. Keckler had filled out an application to work at the restaurant. That was how Fox got her name. Keckler arranged to meet Fox for a job interview selling restaurant supplies. She was a student at Owens Community College. Prosecutors said he had used the ruse to try to meet other women.

Not ‘Worst’ Criminal’

Defense lawyers had unsuccessfully argued that the slaying of Keckler was not premeditated so, therefore, Fox should receive life in prison instead of death. Also they said he was not the worst of criminals, so the death penalty was inappropriate. Fox became the sixth condemned killer executed in Ohio since the death penalty was reestablished. The executions have occurred since 1999.

 
 

State v. Fox, Ohio App. 6 Dist. (1992) (Not Reported in N.E.2d).

MELVIN L. RESNICK, Judge.

This is an appeal from the Wood County Court of Common Pleas, wherein a three-judge panel found appellant, Richard E. Fox guilty of one count of aggravated murder with one death penalty specification and one count of kidnapping. Fox was sentenced to death.

I.

A.

In early May 1989, Marla Ritchey applied for a job as a waitress at the Sundance Restaurant in Bowling Green, Ohio. A few days later she received a call from someone inviting her to a job interview at the Holiday Inn in Bowling Green. On May 8, 1989, Ritchey went to the lobby of the Holiday Inn for her interview. A man approached her and introduced himself as "Jeff Bennett." Ritchey saw that the man had a copy of her Sundance application on his clipboard. The man told her that his day had been hectic and that he had not finished all of his business. He asked Ritchey if she would accompany him on his business route so they could discuss the job. Ritchey agreed and got into his car.

As they were driving, the man explained that he was a representative for a company called "Great American Foods." He stated that the company did business with restaurants in the Northwest Ohio area and that they were interested in hiring a new company representative. He pulled into the parking lot of a bar called "Gamers" and stopped the car. He handed Ritchey a list of medical benefits supposedly included with the job and went inside of the bar.

When he returned a few minutes later, Ritchey questioned him about the specifics of the job. The man answered vaguely, quickly changing the subject. He asked her if she thought she was dressed appropriately for the interview. He told her that he thought her skirt was too long. He then started the car and told her they would go back to the Holiday Inn to further discuss the job. Instead of returning in the direction they had come from, the man proceeded down a back road. Having decided that the interview was a hoax, Ritchey became alarmed and contemplated jumping out of the moving car.

Nevertheless, they did return to the Holiday Inn parking lot where the man stopped the car. Ritchey explained that she was not interested in the job. The man asked her what she would do if someone pulled a knife on her and asked her for all of her money or asked her to do "other things." At that point, Ritchey did jump out of the car. The man attempted to grab for her and told her to come back. As Ritchey ran for her car, the man immediately pulled away.

Ritchey reported the incident to the police providing a description of the man and his car. As a result, the police compiled a composite drawing of a suspect.

B.

On September 14, 1989, eighteen-year-old Leslie Renee Keckler walked into the Bob Evans Restaurant in Bowling Green to apply for a job. Keckler sat at the restaurant's counter where she filled out an application. On that day, appellant, Richard Fox, was employed as grill cook at the restaurant. Restaurant manager, Ronald E. Laney, had Keckler's completed application in his hand when he was approached by Fox. Fox told Laney that he thought he recognized Keckler and he asked Laney for her name. Laney held up the application, pointed to her name and said "[H]er name is Leslie Keckler. Do you know her?" Fox answered no.

Keckler subsequently told family and friends that she had a job interview scheduled for September 26, 1989, at the Holiday Inn in Bowling Green. She told her mother, Linda Dunlap Wilson of Arcadia, Ohio, that the interview was with a man who had a sales route that he wanted to relinquish. The job was supposedly for a restaurant sales position that paid five dollars an hour plus commission. If hired, she would supply Bowling Green restaurants with restaurant supplies. Keckler's mother remembered that her daughter was very excited about the interview.

Mike Crego, Keckler's boyfriend, remembered that Keckler expected the September 26 interview for a sales position to last approximately three hours. Keckler told Crego she would be going over her possible sales route during the interview. On the evening of September 26, Holiday Inn restaurant manager Holly Beaverson saw Keckler sitting on a couch in the lobby of the motel. Beaverson asked Keckler if she could be of assistance. Keckler answered no and explained that she was waiting for someone. According to Beaverson, Keckler was in the lobby approximately fifteen minutes. Beaverson did not see Keckler leave the Holiday Inn.

Early on the morning of September 27, Crego called Keckler's mother to inform her that her daughter had never returned home from the interview. A missing person's report on Keckler was filed with the Bowling Green Police Department on September 27.

On September 28, 1989, Investigator John Helm interviewed Marla Ritchey regarding the composite of "Jeff Bennett" that had been compiled in May 1989. The prior incident at the Holiday Inn involving Ritchey seemed relevant to the Keckler investigation. Ritchey had not been satisfied with the original composite drawing so she assisted Helms in its revision. The revised composite was completed on September 29, and was later released to the local media.

On September 30, 1989, Keckler's body was found in a ditch on the west side of Pargillis Road in Wood County. The coroner reported her immediate cause of death as ligature strangulation complicated by multiple stab wounds.

On October 2, 1989, Richard Kinsman went to the Bowling Green Police Department and identified the revised composite drawing as his former friend, Richard Fox of Tontogony, Ohio. A follow up computer check on Fox revealed that he had previously been involved in an incident at a local pizza store with a female job applicant. The police prepared a search warrant for the residence of Richard Fox.

On October 2, 1989, Detective Thomas Brokamp and Investigator Helm went to Fox's residence. Fox agreed to voluntarily go with the officers to the Bowling Green Police Department. It was there that Fox signed a waiver of his Miranda rights. Fox admitted to being the man that Marla Ritchey had met at the Holiday Inn. Fox also told the officers that he had seen Keckler enter the Bob Evans Restaurant on September 14 and that he had spoken to her about working at the restaurant.

He stated that he met with Keckler at the Holiday Inn on September 26 and that later that evening they met by chance at the Woodland Mall in Bowling Green. They decided to go for a drive and she got into his car. They drove for a while and then parked on Liberty Hi Road in Wood County. According to Fox, "things started getting hot." Keckler got mad at Fox, called him an "asshole" and started to get out of the car. Fox pulled her back in and stabbed her approximately five times. He then got a rope out of his trunk and strangled her to "make sure she was dead." Fox then drove to Pargillis Road and left her body in a ditch.

C.

On October 4, 1989, Fox was indicted for the aggravated murder of Leslie Keckler with a specification that the offense was committed while Fox was committing or attempting to commit the offense of kidnapping and that Fox was the principal offender. Fox was also indicted on one count of kidnapping. On May 3, 1990, a three-judge panel found Fox guilty on both counts and the specification. Fox's counsel requested a mental examination of Fox pursuant to R.C. 2929.03(D).

Following a mitigation hearing, the three-judge panel found beyond a reasonable doubt that the aggravating circumstance that Fox was found guilty of committing outweighed any of the mitigating factors presented to the court. The panel imposed the death penalty for the aggravated murder offense and a concurrent sentence of ten to twenty five years incarceration for the offense of kidnapping.

 
 

State v. Fox, 632 N.E.2d 134 (Ohio 1994).

Defendant was convicted of aggravated murder and kidnapping, and sentenced to death, by a three-judge panel of the Court of Common Pleas, Wood County. Defendant appealed. The Court of Appeals, Alice Robie Resnick, J., affirmed. On appeal as of right, the Supreme Court, Moyer, C.J., held that: (1) defendant was not prejudiced by prosecutor's filing of discovery responses with clerk of court; (2) retired judge was eligible to sit as panel member; (3) panel had not relied upon improper aggravating circumstances; and (4) death sentence was appropriate. Affirmed. Wright, J., filed opinion concurring in part and dissenting in part, in which A. William Sweeney, J., joined.

 
 

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 99-4523

Richard E. Fox, Petitioner-Appellant,
v.
Ralph Coyle, Warden, Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Ohio at Cleveland.
No. 97-03301--Patricia A. Gaughan, District Judge.

Argued: August 7, 2001
Decided and Filed: November 14, 2001

Before: NORRIS, SUHRHEINRICH, and MOORE, Circuit Judges.

_________________

OPINION

_________________

     NORRIS, Circuit Judge. Richard E. Fox ("Fox") appeals from the district court's denial of his petition for a writ of habeas corpus in this Ohio death penalty case. This court granted a certificate of appealability as to two issues: (i) whether the Ohio courts erred by using a separate crime for which Fox was neither charged nor convicted as an aggravating circumstance in imposing the death penalty; and (ii) whether the Ohio courts erroneously considered the violence and planning of the crime as aggravating factors in imposing the death penalty. We now affirm the district court's denial of Fox's petition for a writ of habeas corpus.

I.

     The facts underlying Fox's conviction and sentence were set out by the Ohio Supreme Court:

     On September 14, 1989, Leslie Keckler applied for a waitress job at a Bowling Green restaurant. Defendant, Richard E. ("Dick") Fox, worked there as a grill cook. As Keckler filled out her job application, Fox pointed out Keckler to a coworker and said, "I'd like to have some of that." At Fox's request, the restaurant manager showed Fox the job application, which included Keckler's telephone number.

     Sometime after September 14, Keckler told her boyfriend, girlfriend, and mother about an exciting restaurant supply job opportunity. Keckler described the job to her girlfriend and said that she had an interview. According to Keckler's mother, her daughter was very excited about this "sales route" job, which involved selling supplies such as towels and aprons to local area restaurants.

     On the evening of September 26, Keckler went to the Holiday Inn where a job interview for the sales route job was to take place. Keckler's boyfriend saw her just before she left. Keckler told him she might be gone for two or three hours while she went over the sales route. When Keckler did not come home that night, her boyfriend and mother filed a missing persons report with police. Police found the car Keckler had been driving abandoned at the Woodland Mall.

     On September 30, two boys riding bicycles found Keckler's body in a rural drainage ditch. Keckler was still wearing her new black dress and leather jacket. However, a clasp on her brassiere was broken, her belt was unbuckled, two dress buttons were missing, and her pantyhose were torn in the crotch. Aside from a nearby shoe, police found no other evidence at the scene.

     Keckler had died as a result of asphyxia from ligature strangulation and multiple stab wounds. She had been stabbed six times in the back; three stab wounds penetrated her lungs. Her right wrist had a deep gash, and her face had bruises on her left eye, upper lip, and nose consistent with blunt force injury. The coroner found no signs of sexual molestation.

     The evidence at trial later showed that at the hotel, Keckler had met Fox, who later stabbed her six times, strangled her with a rope, dumped her body into a ditch, and then drove home. The facts surrounding Keckler's abduction reminded police of an incident several months earlier involving Marla Ritchey and an unknown man who called himself "Jeff Bennett." In May 1989, Marla Ritchey had applied for a waitress job at a Bowling Green restaurant. Fox then worked at that restaurant. Some days later, arrangements were made for Ritchey to go to the Bowling Green Holiday Inn for an 8:00 p.m. "job interview." At the Holiday Inn, Fox, calling himself Jeff Bennett, told Ritchey that he worked for Great American Foods, and they needed a local sales representative. Ritchey agreed to accompany "Bennett" in his car that evening to discuss the job.

     After driving a distance and parking, Bennett (Fox) told Ritchey he thought her dress was too long. Eventually, Ritchey decided this was a "fake interview" and told Fox she was not interested in the job. Fox then asked what Ritchey would do if someone "pulled a knife" on her and asked her for money, or asked her "to do other things." When Ritchey jumped out of the car, Fox tried to grab her and said "come back, that he wasn't finished with [her] yet." Ritchey immediately reported the May incident to the police and helped them prepare a composite police sketch of Bennett.

     Because of the similarity between Keckler's abduction and the earlier Ritchey incident, police circulated an updated composite sketch of "Bennett," the man Ritchey had met. Police thought he might be a suspect in Keckler's abduction. On October 2, an acquaintance of Fox told police that this composite sketch resembled Richard Fox of Tontogany. Police confirmed that Fox matched Ritchey's description of "Bennett," and Fox's car also matched the description of "Bennett's" car.

     On October 2, police secured a warrant to search Fox's car and the home where Fox lived with his parents. . . . [O]fficers conducted the search and found some suspicious items, Fox agreed to go voluntarily to the police station, where he waived his Miranda rights and agreed to talk further with police. Before Fox was placed under arrest, he admitted that in early May he had worked at a restaurant where Marla Ritchey had applied for a job, that he met Ritchey at the Holiday Inn, and that he took her for a drive and discussed her skirt length.

     Fox also admitted he knew Keckler and claimed they had met and talked at the restaurant where he worked and met again a couple of days later. He described his encounter with Keckler at the Holiday Inn on September 26 as a date. Later, at the mall, "he saw Leslie and they talked and ended up taking a drive in his car."

     Fox said that, after driving for a while, he and Keckler parked, and "things were getting warmed up." However, "then Leslie did not want to participate." She called him "an asshole and started to get out of the car." Fox told detectives, "no one calls me an asshole." Then "he grabbed Leslie by the coat as she was standing up to get out of the car and pulled her back in," and he "pulled the coat up over her head." Fox got a knife out of the glove compartment and "stabbed her in the back 4 or 5 times." Then, he "got the rope out of the trunk 'just to make sure she was dead' [and] strangled her." Police terminated the interview when Fox asked for a lawyer.

     During the interview, Fox also described another remote rural location. At that location, police subsequently recovered Keckler's purse, her notebook, a letter she had written, her other shoe, a button from her dress, and a piece of nylon cord. Forensic examination of Fox's car revealed blood on the front passenger seat, door, and window. Samples tested were Keckler's blood type. In Fox's garage, police found a fillet knife and a thin nylon rope; both had blood on them.

     A grand jury indicted Fox for kidnapping and aggravated murder with a felony-murder death penalty specification alleging kidnapping. After Fox's motion for a change in venue was overruled by the trial court, Fox waived a jury and tried the case to a three-judge panel.

     At the guilt phase, Fox's retained counsel conceded that Fox had killed Keckler but disputed that the evidence established kidnapping. The parties stipulated that Fox had no criminal record. On cross-examination, some witnesses testified to Fox's good character and hard work. Despite his arguments, the three-judge panel convicted Fox as charged.

State v. Fox, 69 Ohio St. 3d 183-85, 631 N.E.2d 124, 125-27 (1994). Following his conviction, the mitigation phase of Fox's trial began before the same panel of judges.(1) After consideration the panel sentenced Fox to death as well as an additional sentence of 10 to 25 years' imprisonment for the kidnapping offense. State v. Fox, No. 89-CR-325, Verdict and Sentence at 2-3 (Wood Cty. Ct. June 26, 1990).

     Fox's conviction and sentence were affirmed by the Ohio Court of Appeals, State v. Fox, No. 90WD0067, 1992 WL 185671 (Ohio Ct. App. Aug. 7, 1992), and the Ohio Supreme Court. State v. Fox, 69 Ohio St. 3d 183, 631 N.E.2d 124 (1994). Fox sought certiorari from the United States Supreme Court but his petition was denied. Fox v. Ohio, 513 U.S. 1060 (1994).

     Fox then unsuccessfully sought collateral relief from the state courts before filing the present petition for a writ of habeas corpus on May 12, 1998. The district court denied Fox's petition on November 15, 1999, after concluding that the Ohio courts had not considered any extra-statutory aggravating circumstances and that the Ohio Supreme Court's independent reweighing of the aggravating and mitigating circumstances was therefore not contrary to clearly established federal law. See Fox v. Coyle, No. 1:97 CV 3301, at 56 (N.D. Ohio Nov. 15, 1999). The district court also denied Fox's request for a certificate of appealability as to all issues. See id. at 61. This court, however, granted a certificate of appealability as to two issues: (i) whether the Ohio courts erred in using a separate alleged crime for which Fox was not tried as an aggravating factor; and (ii) whether the Ohio courts erred in using the violence and planning of the crime as aggravating factors. The present appeal followed.

II.

A. Standard of Review     

     This court reviews a district court's legal conclusions in a habeas proceeding de novo and its factual findings for clear error. See Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir. 1999). Defendant filed his habeas petition on May 12, 1998, meaning that this court's review of the state court's decision is governed by the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997). As amended, 28 U.S.C. � 2254(d) provides as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. � 2254(d). The Supreme Court has explained the effect of � 2254(d)(1) in the following terms:

     In sum, � 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under � 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied - the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). With these standards in mind, we now turn to Fox's claims.

B. Ohio's Statutory Death Penalty Provisions

     In common with other states that employ the death penalty, Ohio uses a weighing method to determine whether an individual charged with a capital offense receives the death penalty. An individual becomes eligible for the death penalty only if one or more of a series of statutory aggravating circumstances "is specified in the indictment . . . and proved beyond a reasonable doubt." Ohio Rev. Code � 2929.04(A). In the present case, Fox was convicted of murder with the capital specification of kidnapping. See Ohio Rev. Code � 2929.04(A)(7). Once an individual has been found guilty of a capital offense, a jury or three-judge panel must determine whether the presence of one or more of the nine statutory aggravating circumstances listed at Ohio Revised Code � 2929.04(A) outweighs the mitigating circumstances presented by the defendant. The three-judge panel was thus required to "weigh against the aggravating circumstance[] proved beyond a reasonable doubt, the nature and circumstances of the offense, the history, character, and background of the offender, and all of the following factors [listing factors such as age, mental disease, and provocation]." Ohio Rev. Code � 2929.04(B).

     In weighing the aggravating circumstances against the mitigating factors, the

court, and the trial jury if the offender was tried by a jury, [1] shall consider . . . any evidence raised at trial that is relevant to the aggravating circumstances the offender was found guilty of committing or to any factors in mitigation of the imposition of the sentence of death, [2] shall hear testimony and other evidence that is relevant to the nature and circumstances of the aggravating circumstances the offender was found guilty of committing, the mitigating factors set forth in division (B) of section 2929.04 of the Revised Code, and any other factors in mitigation of the imposition of the sentence of death, and [3] shall hear the statement, if any, of the offender, and the arguments, if any, of counsel for the defense and prosecution, that are relevant to the penalty that should be imposed on the offender.

Ohio Rev. Code � 2929.03(D)(1). Finally, if the court or three-judge panel imposes the sentence of death, it must specify in a separate opinion the aggravating and mitigating circumstances found to be present as well as "the reasons why the aggravating circumstances the offender was found guilty of committing were sufficient to outweigh the mitigating factors." Ohio Rev. Code � 2929.03(F).(2)

C. Fox's Constitutional Claims     

     Fox claims that in the process of weighing the aggravating and mitigating circumstances present in his case the three-judge panel improperly considered the planning and violence of the crime. Rather than correcting these errors, Fox further alleges that the state appellate courts compounded them not only by continuing to rely upon the planning and violence of the crime but also by introducing the Ritchey incident into the weighing process. The result, Fox claims, was a constitutionally invalid death sentence.

     An examination of the Supreme Court's death penalty jurisprudence indicates that for Fox's claim to succeed he must show that the state courts did consider extra-statutory aggravators; that any errors were not corrected by the state appeals process; and that the consideration of extra-statutory aggravating factors so infected the balancing process as to render the ultimate sentence constitutionally infirm.

     i) Constitutionality of the Consideration of Extra-Statutory Aggravating Factors

     A state wishing to authorize capital punishment "has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State's responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates 'standardless [sentencing] discretion.'" Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (quoting Gregg v. Georgia, 428 U.S. 153, 196 n.47 (1976)). States may fail to meet their responsibility by relying upon constitutionally invalid aggravating circumstances to define those who are to be sentenced to death. See, e.g., id. at 428 (rejecting the Georgia Supreme Court's affirmance of a sentence of death in a case in which the sole aggravating circumstance was the finding that the offense was "wantonly vile, horrible and inhuman"; such words were insufficient to serve as a restraint on the "arbitrary and capricious infliction of the death sentence"). A defendant's due process rights may also be infringed upon by a state's failure to adhere to its own sentencing statute. See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980) ("Where, however, a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant's interest in the exercise of that discretion is merely a matter of state procedural law. The defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion . . . .").

     The present case involves a state's alleged reliance on sentencing factors that, while constitutionally permissible, could not be considered under the state's statutory sentencing scheme since they were not alleged in the indictment and proved beyond a reasonable doubt.(3) In Barclay v. Florida, 463 U.S. 939 (1983), the Supreme Court considered an Eighth Amendment claim regarding a trial court's use of an extra-statutory aggravating factor in a weighing state. The petitioner in Barclay was sentenced to death for the random, racially motivated killing of a young hitchhiker. Id. at 942. At sentencing the trial court rejected the jury's recommendation of a sentence of life imprisonment and imposed the death penalty. Amongst the aggravating factors cited by the trial court was the petitioner's criminal record; a factor not listed in the Florida statute governing the aggravating and mitigating circumstances to be considered in the imposition of the death sentence. Id. at 944-45. A plurality of the Supreme Court began its analysis by noting that the "the question whether Barclay's sentence must be vacated depends on the function of the finding of aggravating circumstances under Florida law and on the reason why this aggravating circumstance is invalid." Id. at 951. The Court continued:

     The trial judge's consideration of Barclay's criminal record as an aggravating circumstance was improper as a matter of state law: that record did not fall within the definition of any statutory aggravating circumstance, and Florida law prohibits consideration of nonstatutory aggravating circumstances. In this case, like in Zant v. Stephens . . . nothing in the United States Constitution prohibited the trial court from considering Barclay's criminal record. The trial judge did not consider any constitutionally protected behavior to be an aggravating circumstance. . . .

     The crux of the issue, then, is whether the trial judge's consideration of this improper aggravating circumstance so infects the balancing process created by the Florida statute that it is constitutionally impermissible for the Florida Supreme Court [sic] let the sentence stand.

. . . .

     . . . [Petitioner's] assertions seem to suggest that the Florida Supreme Court failed to properly apply its own cases in upholding petitioner's death sentence. The obvious answer to this question, as indicated in the previous discussion, is that mere errors of state law are not the concern of this Court . . . unless they rise for some other reason to the level of a denial of rights protected by the United States Constitution.

     In any event, we do not accept Barclay's premise. Cases . . . indicate that the Florida Supreme Court does not apply its harmless error analysis in an automatic or mechanical fashion, but rather upholds death sentences on the basis of this analysis only when it actually finds that the error is harmless. There is no reason why the Florida Supreme Court cannot examine the balance struck by the trial judge and decide that the elimination of improperly considered aggravating circumstances could not possibly affect the balance.

Id. at 956-58.

     The Supreme Court extended the logic of its Barclay decision in Wainwright v. Goode, 464 U.S. 78 (1983) (per curiam). In Goode, the petitioner argued that the trial judge had considered his future dangerousness in sentencing him to death and that reliance on such a factor was impermissible under Florida's capital punishment scheme. Id. at 80-82. Unlike in Barclay, mitigating evidence had been introduced on behalf of Goode and the trial judge found two mitigating factors to be present. Id. at 80. The Florida Supreme Court rejected petitioner's argument on the grounds that the trial judge had not considered future dangerousness in imposing the death sentence. Id. at 82. The Eleventh Circuit concluded otherwise and held that reliance on an extra-statutory aggravating factor violated the Eighth and Fourteenth Amendments and rendered petitioner's sentence of death arbitrary. The Supreme Court reversed, finding that the Eleventh Circuit had erred when it had substituted its view of the law and the facts for that of the Florida Supreme Court. The Supreme Court went on to note that even if the state trial court had improperly considered the defendant's future dangerousness,

there [wa]s no claim that in conducting its independent reweighing of the aggravating and mitigating circumstances the Florida Supreme Court considered Goode's future dangerousness. Consequently, there is no sound basis for concluding that the procedures followed by the State produced an arbitrary or freakish sentence forbidden by the Eighth Amendment.

Id. at 86-87; see also Clemons v. Mississippi, 494 U.S. 738, 746-47 (1990) (jury which had considered an improper aggravating factor imposed the death sentence; Mississippi Supreme Court affirmed on the basis of its own reweighing of the aggravating and mitigating circumstances; Supreme Court concluded that it "must reject Clemons' assertion that he had an unqualified liberty interest under the Due Process Clause to have the jury assess the consequence of the invalidation of one of the aggravating circumstances on which it had been instructed").

     As Barclay and Goode make clear, no constitutional claim is stated where a state's highest court either concludes that no extra-statutory factors were considered at the trial level (as in Goode) or independently reweighs the aggravating and mitigating circumstances without reference to the extra-statutory factor improperly relied upon by the lower state courts (as in Barclay). The critical question in this case is thus whether the Ohio courts considered extra-statutory aggravating factors and, if they did, whether the Ohio Supreme Court cured any error through its own independent re-evaluation of the appropriateness of Fox's death sentence.

     ii) Planning and Violence of the Crime

     In its consideration of the mitigating circumstances present in Fox's case, the three-judge panel "took note of the manner in which [Fox] planned and executed the events that led to the kidnapping and violent murder of the victim." State v. Fox, No. 89-CR-325, Op. at 6 (Wood Cty. Ct. July 10, 1990). The Ohio Court of Appeals affirmed the decision of the three-judge panel after independently reweighing the aggravating and mitigating circumstances present in Fox's case. In relevant part, that court stated that:

     We now independently consider whether the aggravating circumstance outweighs the mitigating factors beyond a reasonable doubt. The aggravating circumstance Fox was convicted of was committing a murder while committing, attempting, or fleeing immediately after committing or attempting to commit kidnapping. In our review we will consider the nature and circumstances of the offense, the history, character and background of the offender and the mitigating factors pursuant to R.C. 2929.04(B).

     . . . .

     Fox purposely used deception to lure two young women into his control. When Marla Ritchey realized that she was the victim of a cruel hoax, she was lucky enough to get away from Fox as he grabbed for her. Leslie Keckler was not so lucky. When she attempted to get away from Fox, he brutally stabbed and strangled her to death and left her body in a rural ditch. We therefore find that the aggravating circumstance in this case outweighs the mitigating factors beyond a reasonable doubt.

Fox, 1992 WL 185671, at *10, 12.

     Upon appeal, the Ohio Supreme Court rejected Fox's contention that the three-judge panel and the appellate court had both improperly considered the planning and violence of the crime as aggravating circumstances:

     Nonetheless, the trial court could appropriately refer to the "manner in which [Fox] planned and executed the events" that led to the kidnapping and murder. Kidnapping was the specified statutory aggravating circumstance. Moreover, "[u]nder R.C. 2929.03(F), a . . . three-judge panel may rely upon and cite the nature and circumstances of the offense as reasons supporting its finding that the aggravating circumstances were sufficient to outweigh the mitigating factors."

Fox, 69 Ohio St. 3d at 193, 631 N.E.2d at 132 (quoting State v. Stumpf, 32 Ohio St. 3d 95, 512 N.E.2d 598, syllabus para. 1 (1987)). The Court then went on to reweigh the mitigating and aggravating circumstances, concluding that:

     We find nothing in the circumstances of the offense to be mitigating. Under any reasonable interpretation of the evidence, Fox lured Keckler by careful deception into a situation where he could control or dominate her for his own gratification. For whatever reason, he then brutally stabbed and strangled her and callously dumped her body in a ditch.

     . . . .

     When the aggravating circumstance is weighed against the mitigating factors, we find the aggravating circumstance of kidnapping outweighs the mitigating factors beyond a reasonable doubt. Although Fox kidnapped Keckler by deception, rather than force, considerable effort and planning apparently went into that kidnapping. Fox lured a vulnerable eighteen-year-old girl to a remote country road. When she rejected his advances, Fox brutally stabbed her. Then he deliberately got a rope out of the trunk and strangled her "just to make sure she was dead." After doing this, he dumped her body in a drainage ditch and drove home.

Fox, 69 Ohio St. 3d at 194-95, 631 N.E.2d at 133. The Ohio Supreme Court thus not only approved of the Ohio Court of Appeal's reference to the planning and violence of the crime but also relied upon those same factors in concluding that the aggravating circumstance outweighed the mitigating evidence presented by Fox.

     The question presently before us is whether this consideration of the planning and violence of the offense took the Ohio courts outside the carefully delineated boundaries of Ohio's statutory capital punishment scheme. This was a question answered in the negative by the Ohio Supreme Court itself. We find no basis in Ohio law to doubt this conclusion.

     Under Ohio law the only aggravating circumstances that may be considered by the courts in sentencing are those delineated in Ohio Revised Code � 2929.04(A). The nature and circumstances of the offense are thus to be weighed against the aggravating circumstances and not as aggravating factors themselves. See Ohio Rev. Code � 2929.04(B); see also State v. Davis, 38 Ohio St. 3d 361, 372, 528 N.E.2d 925, 935-36 (1988) (reversing and remanding when the trial panel considered the "prior calculation and design" of the murder as an aggravating circumstance). It is, however, entirely permissible under Ohio law for courts to consider the nature and circumstances of an offense in determining whether the aggravating factor(s) outweigh the mitigating circumstances. See State v. Stumpf, 32 Ohio St. 3d 95, 512 N.E.2d 598, syllabus para. 1 (1987) ("[u]nder R.C. 2929.03(F), a trial court or three-judge panel may rely upon and cite the nature and circumstances of the offense as reasons supporting its finding that the aggravating circumstances were sufficient to outweigh the mitigating factors").

     In its most recent discussion of this issue, the Ohio Supreme Court explained that

[t]he nature and circumstances of a crime may be "aggravating" in the sense that they are relevant and tend to reinforce the conclusion that a death sentence should be imposed. This does not mean that the facts surrounding a crime can be set forth in the indictment as a specified statutory aggravating circumstance, nor may they be deemed an "aggravating circumstance" in terms of determining death eligibility. Thus, the fact that a particular murder was, for instance, particularly cruel or heinous is relevant to the determination of the appropriateness of actually imposing a death sentence on a death-eligible perpetrator, even though the fact of cruelty or heinousness would not, of itself, be sufficient to bring the crime within the scope of any section of R.C. 2929.04(A), nor could that fact be used to cause the defendant to become death-eligible.

State v. Gumm, 73 Ohio St. 3d 413, 420-21, 653 N.E.2d 253, 262 (1995) (internal citations omitted). Thus, while the nature and circumstances of the crime may be considered, such factors may not be weighed against the mitigating circumstances, nor may they be included among the aggravating circumstances. Gumm, 73 Ohio St. 3d at 422, 653 N.E.2d at 263.

     The Ohio Supreme Court's consideration of the planning and violence of the crime in the present case adheres to the dictates of Gumm. The planning and violence of the crime were neither weighed against the mitigating evidence nor used as aggravating circumstances. Indeed, the Ohio Supreme Court prefaced its discussion by noting that it found "nothing in the circumstances of the offense to be mitigating," thus indicating that the planning and violence of the crime were used to indicate the absence of mitigating factors rather than the presence of aggravating circumstances. The Ohio Supreme Court therefore did not consider a factor outside the strict limits of Ohio's statutory death penalty framework. Under such circumstances no constitutional violation is stated.

     iii) The Ritchey Incident

     The Ohio Supreme Court also rejected Fox's claim that the appellate court had erred when it referenced the Ritchey incident in the process of reweighing the mitigating and aggravating circumstances:     

     Fox also argues the court of appeals erred in commenting that "Fox purposely used deception to lure two young women into his control." We find no error even though Fox was not charged with any offense against Ritchey. The facts of the Ritchey incident were interwoven with the facts and circumstances of the Keckler kidnapping and murder. Moreover, the Ritchey offense was part of Fox's social history and background and reflected upon his character.

Fox, 69 Ohio St. 3d at 193, 631 N.E.2d at 132. Fox argues that this is an inaccurate characterization of Ohio law. We need not reach this argument, however, as our own careful reading of the Ohio Supreme Court's independent reweighing of the aggravating and mitigating circumstances discloses no reliance on the Ritchey incident. Indeed, the Ohio Supreme Court does not mention the Ritchey incident. See Fox, 69 Ohio St. 3d at 194-95, 631 N.E.2d at 133-34. The Ohio Supreme Court's independent examination of the aggravating and mitigating circumstances thus cured any error that may have been introduced by the lower state court's reference to the Ritchey incident, see Clemons, 494 U.S. at 748-50, and Fox's claim on this point therefore fails.

III.

     The decision of the district court denying Fox's petition for a writ of habeas corpus is affirmed.

Footnotes

     1 Mitigating evidence included the fact that Fox was a good father to his daughter; a solid member of the community; a reliable employee; and a model inmate while imprisoned awaiting trial. Two defense mental health experts also testified that Fox suffered from a severe personality disorder and that his low self-esteem caused him to adopt a fantasy life.

     2 Fox makes much of the three judge panel's failure to comply with the dictates of � 2929.03(F), but this was not among the issues this court certified for appeal. Even were the issue before us, it has been definitively decided against Fox, for the Ohio Supreme Court has held that a defendant is not presumptively prejudiced by a trial court's failure to follow the dictates of Ohio Revised Code � 2929.03(F) as independent review at the state appellate level may cure any error. State v. Maurer, 15 Ohio St. 3d 239, 246-47, 473 N.E.2d 768,777-78 (1984). The United States Supreme Court has endorsed this type of independent review. See Clemons v. Mississippi, 494 U.S. 738, 750 (1990) ("We accordingly see nothing in appellate weighing or reweighing of the aggravating and mitigating circumstances that is at odds with contemporary standards of fairness or that is inherently unreliable and likely to result in arbitrary imposition of the death sentence.").

     3 Thus, in this case, it is Ohio's capital punishment scheme that prohibits consideration of the nature and circumstances of the crime as aggravating factors, not the federal constitution. See Tuilaepa v. California, 512 U.S. 967, 975-76 (1994) (rejecting the claim that California's use of the nature and circumstances of the crime as an aggravating factor at the sentencing stage was unconstitutionally vague; "our capital jurisprudence has established that the sentencer should consider the circumstances of the crime in deciding whether to impose the death penalty").

 

 

 
 
 
 
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