Jay Scott | Murderpedia, the encyclopedia of murderers

COLUMBUS, Ohio (AP) - A convicted killer whose life was twice spared by a court just minutes before he was to be put to death was executed Thursday for the 1993 murder of a delicatessen owner.

Jay D. Scott, 48, died by lethal injection just after 9 p.m. at the Southern Ohio Correctional Facility at Lucasville. It was his third execution date in two months. Courts ordered delays on April 17 and May 15 over questions about his competence.

By the time the scheduled May 15 execution was delayed, the execution team had already placed into Scott's arms the shunts that would carry the drugs to kill him.

Scott's lawyers had pleaded with the courts to spare his life a third time because he is schizophrenic, arguing that killing a mentally ill person is cruel and unusual. The U.S. Supreme Court on Wednesday refused Scott's appeals. His lawyers had also argued that the two canceled executions were cruel and unusual.

Only Gov. Bob Taft could have stopped Scott's execution Thursday. Scott's lawyer had pleaded with the governor for clemency, but Taft had said Wednesday he would not grant it because Scott's lawyers had presented no new evidence since he rejected similar requests in April and May.

Scott was convicted of killing Cleveland delicatessen owner Vinney Prince, 70, who was shot in the chest after she prepared food for Scott and an accomplice. Scott killed a security guard the next day at a Cleveland restaurant and was sentenced to death a second time, but that sentence was overturned because it was found that a juror knew of his first sentence.

480 U.S. 923

Jay D. SCOTT
v.
OHIO

No. 86-5953

Supreme Court of the United States

March 9, 1987

Rehearing Denied April 27, 1987.

On petition for writ of certiorari to the Supreme Court of Ohio.

The petition for a writ of certiorari is denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting from denial of certiorari.

Petitioner was convicted and sentenced to death by a jury that heard the trial judge indicate that, on the basis of newspaper accounts he had read, he believed petitioner was involved in the crime. Because the judge's statement deprived petitioner of a fair trial, I would grant certiorari in this case.

During voir dire, the trial judge stated to the jury:

"Not only was Mr. Scott-at least from the newspaper reports that I think that I had read-was involved in this, there were three other . . . individuals who . . ." 26 Ohio St.3d 92, 95, 497 N.E.2d 55 ( 1986).

Defense counsel interrupted to object to this comment on petitioner's involvement in the crime. He subsequently made a motion for a mistrial, in which the prosecutor joined. The trial court denied the motion, but delivered a cautionary instruction admonishing the jury to base its verdict only on the evidence introduced at trial. The judge also told the jury, "[Y]ou must not take any impression from anything I have done or said as to what your decision should be." App. to Pet. for Cert. 33-34.

The Ohio Supreme Court attempted to excuse the remark. The court insisted that "[t]he judge's comment did not concern [petitioner's] guilt or innocence, but, rather, noted the fact that the news media had reported [ petitioner's] involvement with the crime." 26 Ohio St.3d, at 96, 497 N.E. 2d 55. This is a ludicrous reading of the statement. How the jury could reasonably have interpreted and applied the comment determines whether it should be considered prejudicial. See, e.g., Sandstrom v. Montana, 442 U.S. 510, 516 -519, 2455-2456 (1978).

In this case, the jury could reasonably take the comment at face value, namely, as a statement that, based on what he had read in the newspapers, the judge believed petitioner was a participant in the crime. Before the jury had even heard any the evidence, the judge had effectively become a witness against petitioner. See United States v. Murdock, 290 U.S. 389, 393 , 54 S. Ct. 223, 224 (1933).

Moreover, even under the Ohio Supreme Court's dubious interpretation, the judge's comment deprived petitioner of a fair trial. The only legitimate judicial references to pretrial publicity would have been inquiries about exposure to pretrial publicity or warnings against it. Instead, the judge actually reported to the jurors the media's conclusion that petitioner was guilty. That the source of this prejudicial publicity was the trial judge magnifies, rather than eliminates, the problem. The jury could reasonably assume that, since the judge had read about the crime, it was acceptable for them to do so as well.

The Ohio Supreme Court relied on the cautionary instruction given to the prospective jurors, maintaining that it "minimize[d] any prejudicial effect this comment may have had. . . ." Id., 26 Ohio St.3d at 96, 497 N. E.2d 55. This reliance is misplaced. Because "the influence of the trial judge on the jury is necessarily and properly of great weight, and . . . his lightest word or intimation is received with deference, and may prove controlling," Starr v. United States, 153 U.S. 614, 626 , 923 (1894), some errors are so fundamental that no instruction can undo the damage they cause. See Quercia v. United States, 289 U.S. 466, 472 , 700 (1933).

A comment on petitioner's guilt is certainly such a fundamental error; it is "most likely to remain firmly lodged in the memory of the jury and to excite the prejudice which would preclude a fair and dispassionate consideration of the evidence." Ibid. Moreover, any reference to extrajudicial evidence by the trial judge destroys the fundamental premise of any trial-that the ultimate decision rests solely upon evidence presented by the parties within the confines of the rules of evidence.

The remedy for this extraordinary error was close at hand. No witness had yet been sworn. The panel of prospective jurors might have been discharged and a new venire called without difficulty. Nonetheless, the trial judge plunged ahead and petitioner was tried by a jury exposed to comments that overwhelmed the presumption of innocence. Because we cannot tolerate such interference with petitioner's right to a fair trial in a capital case, I would grant the petition for certiorari.

In addition, petitioner's death sentence was founded on a statutory aggravating circumstance that repeats an element of the underlying capital offense. As in No. 86-5307, Williams v. Ohio, and No. 86-6015, Bradley v. Alabama, ___ U.S. ___, 107 S.Ct. ___, 93 L.Ed.2d ___, I would grant review for reasons stated in my dissent from denial of certiorari in Wiley v. Mississippi, ___ U.S. ___ (1986).

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 01-3511

Jay D. Scott, Petitioner-Appellant,
v.
Betty Mitchell, Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Ohio at Cleveland.

No. 95-02037--Kathleen McDonald O'Malley, District Judge.

Submitted: May 15, 2001
Decided and Filed: May 15, 2001

Before: BOGGS, SILER, and BATCHELDER, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge. This matter is before us on petitioner Jay D. Scott's motion for a stay of his execution, scheduled for 9:00 p.m. on this date, and on Scott's appeal from the district court's denial of his supplemental petition for habeas corpus. The district court denied Scott's supplemental petition because it concluded that although the claims raised therein were not procedurally barred under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. � 2244, those claims were without merit.

We conclude that Scott's third claim--that execution of the severely mentally ill is prohibited by the Eighth Amendment--is procedurally barred. We further conclude that his first and second claims--that Ohio's procedures for determining whether he is competent to be executed and the Ohio courts' application of those procedures to him violated his rights under the Eighth Amendment and denied him due process, and that the Ford v. Wainwright test for determining competency to be executed is inadequate in light of contemporary standards of decency--may be considered on their merits because they were not ripe at the time Scott filed his initial habeas petition.

For the reasons that follow, we conclude that neither of those claims is meritorious, and we will therefore AFFIRM the judgment of the district court denying the writ. Finally, we DENY the motion for stay of Scott's execution.

I. Procedural Background

Jay Scott was convicted by an Ohio jury of aggravated robbery and aggravated murder on March 21, 1984, and sentenced to death. He pursued all of his state court avenues of direct appeal and collateral review without success, and the Ohio Supreme Court scheduled his execution for October 25, 1995.

Scott immediately filed in federal district court a notice of his intent to file a petition for habeas corpus. The petition, filed on February 2, 1996, was ultimately denied; the Supreme Court denied Scott's petition for certiorari; and the Ohio Supreme Court set Scott's execution date for April 17, 2001.

Scott then sought an evidentiary hearing in the state court pursuant to Ohio Rev. Code Ann. � 2949.28, claiming that he has been diagnosed as schizophrenic, and that the mental disease has progressed to the point that he is not competent to be executed. The state trial court held a hearing, at which Scott was permitted to present the live testimony of his psychiatrist, but concluded that there was no probable cause to believe that Scott meets the Ohio statute's definition of insanity for purposes of competence to be put to death. The trial court therefore denied Scott's request for a full evidentiary hearing.

The Ohio Supreme Court postponed Scott's execution date in order to permit the state court of appeals to consider his appeal of the trial court's judgment; that judgment ultimately was affirmed by the state appellate court, and the Ohio Supreme Court denied Scott's request for a further stay of his execution.

The United States Supreme Court declined to hear Scott's challenge to the constitutionality of the Ohio Supreme Court's decision denying a further stay of execution. Scott then filed a "Supplemental Petition for a Writ of Habeas Corpus" seeking to assert his claims that he is not competent to be executed, that the Ohio procedures for determining his competence to be executed are unconstitutional, and that the Eighth Amendment prohibits the execution of one who is severely mentally ill. The district court denied the petition and Scott is now before this court, seeking a stay of his scheduled execution and a reversal of the district court's denial of his petition for a writ of habeas corpus.

II. Analysis

Scott's petition before the district court claims first that Ohio's statutory procedures for determining his competence to be executed are unconstitutional, and that the Ohio courts' applications of those procedures to him violated his rights under the Eighth Amendment and denied him due process. His petition next claims that Ford v. Wainwright, 477 U.S. 399 (1986), is obsolete.

Finally, his petition asserts that the Eighth Amendment prohibits the execution of one who is severely mentally ill. The State argues that this petition is not a supplemental petition and that under the AEDPA it is barred in its entirety unless Scott obtains permission from this court to file a second and successive petition. Scott maintains that none of these claims was ripe when he filed his initial petition for habeas relief in 1996, and therefore the AEDPA bar is not applicable.

We agree with the State that Scott's claim that the Eighth Amendment prohibits the execution of one who is severely mentally ill is barred. Although Scott was not specifically diagnosed as being schizophrenic until well after he filed his initial petition in 1996, his own pleadings make it clear that he had suffered from severe mental illness for years before that petition was filed.

Any claim that his execution was prohibited by the Eighth Amendment because he was severely mentally ill was therefore ripe at the time that he filed that petition, but the petition makes no mention of such a claim. Accordingly, we conclude that the district court erred in considering this claim on the merits.

We do not agree with the State, however, that Scott's claim that he was denied his Eighth Amendment and due process rights because Ohio's procedures for determining competence for purposes of execution are unconstitutional is similarly barred. Scott's first execution date preceded his filing of his initial federal habeas petition, and he certainly could have raised his Ford claim in that petition.

However, the State does not dispute Scott's claim that he is schizophrenic; neither does it dispute his claim that this mental disease is progressive and that its victims do not improve but only get worse. Accordingly, Scott's imminent execution and his claim to a declining mental state lead us to conclude, consistent with our opinion in Coe v. Bell, 209 F.3d 815, 824-25 (6th Cir. 2000), that while this claim might not have been ripe six years ago, it is certainly ripe now.

We therefore conclude that we will address on its merits Scott's challenge to the adequacy of the Ford standard. Under the particular facts of this case, Scott had no reason to challenge the adequacy of that standard until he raised his claim that he is not competent to be executed.

We find, however, no error in Judge O'Malley's conclusion that we are bound by Ford because "neither the Supreme Court nor the Court of Appeals in this Circuit has ever issued an opinion questioning its vitality." Judge O'Malley is entirely correct, and she is further correct that the Supreme Court's grant of certiorari in McCarver v. North Carolina, 121 S. Ct. 1401 (2001), does not affect this result.

We therefore conclude that the definition of insanity set out in Ohio's Ford statute, Ohio Rev. Code Ann. � 2948.28(A), provides the appropriate standard for determining whether Scott is competent to be executed. That definition is: "that the convict in question does not have the mental capacity to understand the nature of the death penalty and why it was imposed upon the convict." Id.

We are left with Scott's claim that Ohio's courts denied him due process by burdening him with proving his competency under Ford and by denying him an opportunity for an evidentiary hearing on that question. We find no merit to this claim.

Ford provides that "an insane defendant's Eighth Amendment interest in forestalling his execution unless or until he recovers his sanity cannot be deprived without a 'fair hearing.' Indeed, fundamental fairness is the hallmark of the protections afforded by the Due Process Clause." 477 U.S. at 424 (Powell, J., concurring).

Applying this principle, we have recognized that "the state is entitled to exercise discretion in creating its own procedures as long as basic fairness is observed." Coe v. Bell, 209 F.3d 815, 824-25 (6th Cir. 2000) (internal alterations and citation omitted) (concluding that the procedures followed by the Tennessee courts satisfied the requirements of due process and did not constitute an unreasonable application of Ford).

Ohio's Ford statute provides:

(1) If a convict sentenced to death appears to be insane, the warden or the sheriff having custody of the convict, the convict's counsel, or a psychiatrist or psychologist who has examined the convict shall give notice of the apparent insanity to . . .the judge who imposed the sentence upon the convict . . . .

(2) Upon receiving a notice pursuant to division (B)(1) of this section, a judge shall determine, based on the notice and any supporting information, any information submitted by the prosecuting attorney, and the record in the case, including previous hearings and orders, whether probable cause exists to believe that the convict is insane. If the judge finds that probable cause exists to believe that the convict is insane, the judge shall hold a hearing to determine whether the convict is insane. If the judge does not find that probable cause of that nature exists, the judge may dismiss the matter without a hearing.

Ohio Rev. Code Ann. � 2949.28(B). This statute afforded Scott the basic fairness that Ford requires; namely, the opportunity to be heard. Scott availed himself of that opportunity when, for example, he presented live testimony from Dr. Douglas Mossman. We have acknowledged that Ford allows states "substantial leeway to determine what process best balances the various interests at stake." Coe, 209 F.3d at 828 (quotation omitted).

A state process under Ford may even incorporate "some high threshold showing on behalf of the prisoner . . . to control the number of nonmeritorious or repetitive claims of insanity." 477 U.S. at 417 (plurality opinion). Accordingly, that Ohio denied Scott an evidentiary hearing does not violate due process as enunciated in Ford.

Concerning Scott's argument that the Ohio statute impermissibly placed upon him the burden of proving his competency, we do not read Ford and Coe--the governing cases here--to say that procedural due process requires Ohio's Ford statute to set up a burden-shifting paradigm or to assign the initial burden of establishing probable cause to the state.

Ohio's statute does not contemplate burden shifting to establish probable cause. Rather, the statute directs the court to examine the evidence and to make a finding regarding whether there is probable cause to believe that a convict meets the Ford standard.

Here, Dr. Mossman testified that Scott suffers from schizophrenia, but he did not state that Scott is unable to "understand the nature of the death penalty and why it was imposed upon" him. The trial court was therefore justified in finding that Scott had presented no evidence of probable cause sufficient to warrant holding a full evidentiary hearing. For this reason, we agree with the district court that "[w]hatever the merits of Scott's Due Process contentions, in the abstract, the Court fails to see how they are meaningful in this case." Scott v. Mitchell, No. 95CV2037, Order at 6 (N.D. Ohio May 14, 2001).

III. Conclusion

For the foregoing reasons, we affirm the judgment of the district court denying the petition for a writ of habeas corpus, and we deny petitioner's motion for a stay of his execution.

Jay D. Scott