Appellant also contends that the state has failed to prove that he killed Mark Klima “for the purpose of escaping detection, apprehension, trial, or punishment for another offense committed by the offender.” R.C. 2929.04(A)(3). It is undoubtedly correct, as appellant suggests, that R.C. 2929.04(A)(3) “[does not permit] an inference that every intended killing which follows another crime allows the death penalty to be imposed.” (Emphasis sic.) State v. Stumpf (1987), 32 Ohio St.3d 95, 103–104, 512 N.E.2d 598, 607. He contends, moreover, that there exists a dearth of evidence that he committed the offense for any of the purposes enumerated in the statute. Clearly, R.C. 2929.04(A)(3) envisions conviction thereunder where it is proven that the accused committed aggravated murder to avoid “detection.” We have previously held “that ‘detection’ anticipates a situation where the witness or witnesses are killed in an attempt to hide the commission of the crime.” State v. Jester (1987), 32 Ohio St.3d 147, 148–149, 512 N.E.2d 962, 965. Thus, in Jester, supra, this court alluded to the facts in Stumpf, supra, to illustrate a situation where the specification had been proven beyond a reasonable doubt: “ * * * [I]n State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598, the defendant had shot the husband. Believing that he had killed the husband, Stumpf then killed the wife, the only witness besides defendant and his co-defendant, to avoid detection.” Jester, supra, at 149, 512 N.E.2d at 965.

In contrast, the facts in Jester were insufficient to establish the specification “ * * * because the shooting occurred in a crowded bank, [and] it is not possible to find that he was seeking to avoid detection.” Id. at 148, 512 N.E.2d at 965. Thus, no inference arises that a criminal defendant seeks to escape detection under circumstances where one of many potential witnesses is slain. However, where the accused attempts to kill the only witness to his commission of a crime, there exists sufficient circumstantial evidence that the act was undertaken for the purpose of avoiding detection. See State v. Stumpf, supra. In the case sub judice, Mark Klima was the sole witness to the burglary of the Klima residence. A rational trier of fact could conclude from this evidence that appellant killed Mark Klima for the purpose of escaping detection for the crime. Appellant's ninth proposition of law is therefore overruled.

X

In his tenth proposition of law, appellant contends that the testimony of Carol Klima relative to her prior conversation with her son was inadmissible hearsay. Carol Klima testified regarding the presence of appellant on her property on August 5, 1985, two days before the murder. Her testimony on this point consisted of the following: “He talked to my son. He asked my son if he recognized him. My son said, ‘Yes, you're Mark Wiles.’ And Mark Wiles told my son that he had amnesia and that he wanted to talk to me, and my son told him that I was up at the house and Mark Wiles started to walk towards the house and the dog started barking and he turned around and left.”

The aforementioned testimony was introduced by the state for the purpose of establishing that Mark Klima was capable of identifying appellant to the authorities. Such evidence would also tend to demonstrate that appellant was guilty of the specification under R.C. 2929.04(A)(3) inasmuch as the killing of Mark Klima would enable appellant to escape detection, apprehension, trial or punishment for another offense. Despite the relevancy of such evidence, appellant contends that the testimony constitutes inadmissible hearsay. The state essentially concedes that Carol Klima's recollection of the conversation with her son was offered to prove the truth of the matter asserted. It was therefore the intent of the prosecution to establish that appellant knew that Mark Klima could identify him. The statement is clearly hearsay within the meaning of Evid.R. 801(C) and does not satisfy the requirements for admissible hearsay under Evid.R. 803 or 804. Accordingly, it was inadmissible under the Rules of Evidence.

However, no objection to such testimony was interposed at trial. Appellant also failed to raise this issue before the court of appeals. Trial error not preserved by objection may be considered on appeal only if it constitutes plain error. The plain error test requires that, but for the existence of the error, the result of the trial would have been otherwise. State v. Long (1978), 53 Ohio St.2d 91, 97, 7 O.O.3d 178, 181, 372 N.E.2d 804, 808.

Assuming arguendo that the failure to exclude such testimony would have constituted reversible error if an objection thereto had been made, there exists sufficient evidence apart from the statements of Carol Klima to support the verdict with regard to the specification. (See Part IX, supra.) It cannot be said with any degree of confidence that appellant would have been acquitted of the specification but for the hearsay testimony. Accordingly, appellant's tenth proposition of law is overruled.

XI

In his twelfth proposition of law, appellant argues that the state introduced improper evidence and engaged in inflammatory argument during the guilt phase of the trial. The evidence in question involved the testimony of Carol Klima, who described her son as “a wonderful boy” with a quiet disposition. She further discussed Mark's hobbies and grades in school. Moreover, the prosecuting attorney described the deceased in closing argument as follows: “A boy, a son that every parent would dream about having. A four-point student and an accomplished writer. A shy and quiet boy * * * who liked computers, who hated violence.” The prosecution also evoked the suffering of Charles and Carol Klima: “And the worst repayment of all was the mutilation and the snatching away of the life of their only child.”

Appellant correctly contends that this evidence and argument constituted an irrelevant appeal to the emotions. However, in reviewing a bench trial, an appellate court presumes that a trial court considered nothing but relevant and competent evidence in reaching its verdict. The presumption may be overcome only by an affirmative showing to the contrary by the appellant. State v. Post (1987), 32 Ohio St.3d 380, 384, 513 N.E.2d 754, 759. Appellant has failed to identify anything in the record which would suggest that the trial court considered anything but competent, credible evidence in arriving at the verdict. Similarly, there is no indication from the trial court opinion to support the view that the personal qualities of the deceased or the grief suffered by his parents was considered in fixing sentence. See Booth v. Maryland (1987), 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440.

Appellant further objects to the characterization of him by the prosecutor as “an ogre * * *, a man-eating monster, a hideous, brutish person * * * ” and “an animal.” Such invective is highly unprofessional. See DeFoor, Prosecutional Misconduct in Closing Argument (1983), 7 Nova L.J. 443, 465. However, the prosecution is entitled to some latitude in summation. State v. Woodards (1966), 6 Ohio St.2d 14, 26, 35 O.O.2d 8, 14, 215 N.E.2d 568, 578. “ * * * Strong characterizations such as ‘beast,’ ‘cruel human vulture,’ and ‘vile creature’ have been allowed where there is support for them in the record. * * * ” DeFoor, supra, at 464–465. The language of the prosecuting attorney, while strong, is amply supported by the record. Mark Klima was stabbed at least ten times, mostly in the back, and sustained a total of twenty-four wounds. Moreover, no objection was interposed relative to the characterizations. Finally, such remarks were directed to a three-judge panel, which is presumed to have considered only relevant evidence in arriving at its decision. State v. Post, supra. Thus, there exists no basis for concluding that such remarks deprived appellant of a fair trial.

Appellant also challenges the reference made by the prosecution that he lied to the police on various occasions, including when he told police that the deceased had attacked him. He contends that his veracity was irrelevant to the issue of guilt or innocence. However, appellant had maintained as a crucial aspect of his defense that the homicide was not purposeful because he had killed in a moment of panic after he was attacked with a knife by Mark Klima. Inasmuch as appellant was the only surviving witness to the fatal encounter, it was clearly permissible for the state to argue that appellant's version of events was unworthy of belief because he had lied on other occasions. See State v. Landrum (1990), 53 Ohio St.3d 107, 110, 559 N.E.2d 710, 717.

The prosecution also argued that appellant had failed to “show concern” about the crime because of his threat to “kill again.” Appellant takes issue with these statements because he contends that they focus on “future dangerousness” and are thus irrelevant to the issue of guilt. However, the prosecution's argument sought not to establish appellant's future dangerousness but rather his total lack of remorse shortly after the commission of the crime. While under most circumstances such argument would be equally irrelevant to guilt or innocence, the subjective mental state of appellant during the period following the crime became an issue during the guilt phase of the trial as a result of the strategy employed by the defense. The defense had emphasized both on cross-examination and in closing argument that appellant had cooperated with police and had shown deep remorse “to the point that he even contemplated taking his own life * * *.” Such argument as was advanced by the state merely sought to rebut the defense contentions.

Appellant also objects to references by the prosecution regarding the youth of the victim. However, such argument is clearly relevant to answer the claim of appellant that he was attacked by Mark Klima. While it is certainly true that persons fifteen years of age have been known to commit homicide, the prosecution was certainly free to argue that it is much more likely that a twenty-two-year-old burglar would attack a fifteen-year-old boy than for the opposite to occur. Appellant's twelfth proposition of law is overruled.

XII

In his fourteenth proposition of law, appellant challenges the use of inflammatory arguments by the prosecution during the penalty phase of the trial. Of particular significance is the contention of appellant that the prosecutor commented disparagingly about the exercise of his constitutional rights. In attempting to refute appellant's claim that he cooperated with police, the prosecutor remarked: “Did he cooperate with Duane Kaley when he went over to talk to him the afternoon of August Seventh? * * * He wouldn't give him a consent to search the car.” Appellant correctly notes that “courts disapprove of penalties imposed for exercising constitutional rights.” State v. Landrum, supra, at 110, 559 N.E.2d at 716. Prosecutorial comment that “cuts down on” a constitutional right “by making its assertion costly” is forbidden. Griffin v. California (1965), 380 U.S. 609, 614, 85 S.Ct. 1229, 1232, 14 L.Ed.2d 106.

Appellant clearly had a right to withhold consent to a warrantless police search of his car. The comment by the prosecution sought to penalize the assertion of this right. Just as prosecutors are barred from commenting upon the assertion by a criminal defendant of his Fifth Amendment right against self-incrimination, Griffin, supra, or upon his plea of not guilty, Landrum, supra, they may not comment on his exercise of his Fourth Amendment right against unreasonable searches. See United States v. Thame (C.A.3, 1988), 846 F.2d 200, 205–207; United States v. Taxe (C.A.9, 1976), 540 F.2d 961, 969. Nevertheless, the defense did not object to the comment by the prosecutor. This deficiency waives any claim of error except plain error under Crim.R. 52(B). As observed earlier, however, an error will not be found to be plain error where it is not outcome determinative. (See Part X, supra.) Given the presentation of such argument in the context of a bench trial, it must be presumed that the court disregarded an appeal by the prosecutor premised upon the assertion by appellant of his constitutional rights.

Appellant also objects that the prosecution commented on his refusal to testify on his own behalf. Remarks of this nature, if they occurred, would be clearly inappropriate. Griffin v. California, supra. However, no such comments were made by the prosecution. Rather the prosecutor said, “Mark Klima is also a witness, but he's not talking to you from his mouth, he's talking to you through the puncture wounds in his back and in his chest.” (Emphasis added.) This does not constitute comment upon appellant's refusal to testify.

Appellant also challenges the relevancy of comments by the prosecution relative to the character of the victim. The prosecutor described Mark Klima as a “quiet,” “peaceful and nonviolent” person who “backed away from fights.” However, such remarks were a valid attempt to refute the characterization of Mark Klima by appellant as the aggressor. Appellant further objects to the reference of the prosecutor to the suffering inflicted upon the victim. However, we have previously held that absent plain error, such comment does not constitute reversible error. State v. Cooey, supra, at 36, 544 N.E.2d at 915.

Appellant additionally cites comments made by the prosecutor about his character, which appellant argues were irrelevant and prejudicial. In particular, the prosecution remarked: “If you look at his history, his character and background, he's a drugger, a doper.” The prosecutor also alluded to appellant's affair with his cousin's wife. While such remarks border on irrelevancy, the Supreme Court has approved “open and far-ranging argument * * * ” and observed that “[s]o long as the evidence introduced and the arguments made at the pre-sentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. * * * ” Gregg v. Georgia (1976), 428 U.S. 153, 203–204, 96 S.Ct. 2909, 2939, 49 L.Ed.2d 859 (plurality opinion).

Appellant argues that the prosecution improperly referred to his alleged future dangerousness. In State v. Beuke (1988), 38 Ohio St.3d 29, 33, 526 N.E.2d 274, 280, this court specifically permitted such comment by the prosecution. Appellant further maintains that future dangerousness may not be considered because it is not a statutory aggravating circumstance, citing Jurek v. Texas (1976), 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929. However, Jurek merely concluded that states may constitutionally designate future dangerousness as a statutory aggravating circumstance. Id. at 274–276, 96 S.Ct. at 2957–58. As mentioned previously, however, evidence of appellant's future dangerousness was not admitted for the purpose of establishing a non-statutory aggravating circumstance but to refute his contention during both the guilt and penalty phases of the trial that he experienced remorse over the killing of Mark Klima.

During the course of closing argument at the mitigation hearing, the prosecution repeatedly referred to the emotional impact of Mark Klima's death on his parents. While such references are constitutionally impermissible, Booth v. Maryland, supra, there is no affirmative showing by appellant that they were considered by the trial court in imposing sentence, State v. Post, supra.

Appellant also objects to remarks made by the prosecutor relative to offenses for which appellant had not been charged or convicted. He therefore contends that such comment violated the presumption of innocence. However, such presumption does not obtain in sentencing proceedings. Consequently, no statutory or constitutional infirmity exists. See State v. Hutton (1990), 53 Ohio St.3d 36, 42–43, 559 N.E.2d 432, 441; State v. Cooey, supra, at 35, 544 N.E.2d at 914. Appellant also challenges the argument of the prosecutor that appellant left the scene of the crime with the money he had stolen, rather than obtaining medical assistance for the victim. This argument, appellant contends, is “irrelevant and ridiculous * * *.” However, such remarks were intended to refute appellant's claim that the killing of Mark Klima was unintentional. Clearly, a question arises regarding such protestations by appellant when no attempt was made to seek help for an “unintended victim.” Appellant's fourteenth proposition of law is overruled.

XIII

In his fifteenth proposition of law, appellant contends that the trial court improperly considered nonstatutory aggravating circumstances in imposing sentence. This argument is without merit. The trial court specifically and correctly identified the aggravating circumstances in its opinion. It further stated ten reasons why the aggravating circumstances outweighed the mitigating factors. Appellant, however, characterizes these reasons as nonstatutory aggravating circumstances. R.C. 2929.03(F) requires that a trial court state the reasons for its finding that the aggravating circumstances outweigh the mitigating factors. Moreover, in State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598, this court held at paragraph one of the syllabus, that the “trial court * * * 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.”

Accordingly, where the court below correctly identifies the statutory aggravating circumstances pleaded and proven at trial, this court will infer that the trial court “understood the difference between statutory aggravating circumstances and facts describing the nature and circumstances of the offense.” State v. Sowell (1988), 39 Ohio St.3d 322, 328, 530 N.E.2d 1294, 1302. Clearly, such inference is appropriate in the case at bar. Appellant's fifteenth proposition of law is overruled.

XIV

Appellant claims in his sixteenth proposition of law that the trial court failed to consider relevant mitigating factors adduced by him at the sentencing hearing. The trial court determined that appellant had established two mitigating factors: his youth and his “mostly truthful and sincere” confessions. However, appellant contends that the trial court did not consider his deep remorse over the killing or the fact that the murder would not have been solved without his surrender to authorities and his subsequent confessions. This argument mischaracterizes the trial court decision. The court specifically mentioned that it had considered “[e]vidence of remorse” and “cooperation of the defendant with law enforcement officials and confessions.”

Moreover, appellant's contention that the trial court failed to take into account his history of drug and alcohol abuse is inaccurate. A review of the trial court opinion contradicts this assertion. Appellant further maintains that the trial court ignored mitigating evidence relative to his active involvement in church activities. This contention is also contradicted by the language of the trial court opinion. We similarly reject appellant's contentions that the trial court failed to consider the results of his psychological evlauation, his generally favorable record during a prior incarceration, his troubled family history, his history of nonviolence, or his efforts to avoid a confrontation during the burglary. The trial court opinion reveals that such evidence was in fact considered.

Appellant also maintains that the trial court failed to give due regard to his lack of a significant history of prior convictions as required by R.C. 2929.04(B)(5). However, the court merely concluded that the factor did not exist because it viewed appellant's prior burglary conviction as significant. Appellant likewise contends that the trial court did not consider that the victim induced the stabbing by attacking him and thus ignored mitigating circumstances to which it is required to accord weight pursuant to R.C. 2929.04(B)(1). A more plausible reading of the trial court decision yields the conclusion that the court simply did not believe appellant's version of his encounter with Mark Klima. Accordingly, it was the determination of the trial court that the statutory mitigating factor did not exist.

Assuming arguendo that such mitigating factors should have been more explicitly addressed by the trial court, any deficiency inherent therein can be cured by an independent reweighing of the factors by this court. State v. Lott, supra, at 171–173, 555 N.E.2d at 305–307. Appellant's sixteenth proposition of law is overruled.

XV

In his twenty-third proposition of law, appellant contends that the trial court failed to adequately explain why the aggravating circumstances were sufficient to outweigh the mitigating factors. While appellant concedes that the trial court listed ten reasons why the aggravating circumstances prevailed, he nevertheless argues that the listings did not constitute a meaningful weighing. R.C. 2929.03(F) requires a trial court to “state * * * the reasons why the aggravating circumstances the offender was found guilty of committing were sufficient to outweigh the mitigating factors * * *.” This function was fully performed by the trial court in the case at bar. Appellant's twenty-third proposition of law is overruled.

XVI

In his twenty-fifth proposition of law, appellant urges that the court of appeals improperly considered the circumstances of the offense as nonstatutory aggravating circumstances. However, a review of the court of appeals' opinion reveals that the appellate court correctly identified the aggravating circumstance upon which its decision was predicated. Appellant further contends that the appellate court failed to give sufficient weight to several of the mitigating factors which he presented at trial. However, the court is under no obligation to assign any particular weight to mitigating factors advanced by the defendant. See State v. Cooey, supra, at 39–40, 544 N.E.2d at 918. Appellant's twenty-fifth proposition of law is overruled.

XVII

In his twenty-eighth proposition of law, appellant objects to the admission of numerous gruesome autopsy photographs of the victim. The photographs are clearly gruesome and repetitive. State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph seven of the syllabus. However, appellant failed to object to the admission of such exhibits at trial. Moreover, the probative value of such evidence is beyond question. The photographs reveal the number and location of the stab wounds and are thus relevant to the issue of intent. Accordingly, their admission cannot be considered plain error. Appellant's twenty-eighth proposition of law is overruled.

XVIII

In his eleventh proposition of law, appellant maintains that the trial court should have provided for a stenographic record of its visit to the Klima residence to view the murder scene. However, appellant neither requested that a record be made at the time nor attempted to employ App.R. 9(C) or 9(E) “to reconstruct what was said or to establish its importance.” State v. Brewer (1990), 48 Ohio St.3d 50, 61, 549 N.E.2d 491, 502. Accordingly, any alleged error in failing to record the event has been waived for purposes of appellate review. Appellant's eleventh proposition of law is overruled.

XIX

In his twenty-seventh proposition of law, appellant contends that the indictment is invalid because it does not bear the signature of the grand jury foreman. During the course of these proceedings, the portion of the indictment originally transmitted to this court containing the foreman's signature was misplaced. This missing page has since been located. In the meantime, to remedy this apparent deficiency, the state was permitted to supplement the record by supplying a certified copy of the indictment. See 47 Ohio St.3d 702, 547 N.E.2d 988.

We are unable to determine when this page containing the signature became detached and misplaced. However, regardless of when the detachment occurred, we cannot agree that this apparent irregularity warrants reversal. If the signature was properly attached prior to trial, then the indictment did not lack a signature and no defect existed. If the signature page was misplaced before trial, appellant has failed to preserve any error by timely objection. Appellant may not withhold a timely objection at trial in the hopes of obtaining a favorable outcome on the merits and attempt to raise the error on review when the desired result fails to materialize. See Wainwright v. Sykes (1977), 433 U.S. 72, 89–90, 97 S.Ct. 2497, 2507–08, 53 L.Ed.2d 594. Appellant's twenty-seventh proposition of law is overruled.

XX

In his twenty-second proposition of law, appellant contends that the mitigating factors set forth in R.C. 2929.04(B) are unconstitutionally vague because they “fail to adequately inform the trier of fact what may and may not be considered in mitigation.”

However, in Eddings v. Oklahoma (1982), 455 U.S. 104, 113–114, 102 S.Ct. 869, 876–77, 71 L.Ed.2d 1, the United States Supreme Court held that “the State may not by statute preclude the sentencer from considering any mitigating factor * * *.” Although irrelevant evidence may be excluded, Lockett v. Ohio (1978), 438 U.S. 586, 604, fn. 12, 98 S.Ct. 2954, 2965, fn. 12, 57 L.Ed.2d 973, any attempt to restrict what may be considered in mitigation would be violative of the Eighth and Fourteenth Amendments to the United States Constitution. While appellant cites Maynard v. Cartwright (1988), 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372, for the proposition that “sentencing guidelines” must be specific, the decision addressed an unconstitutionally vague aggravating circumstance, not a mitigating factor. Rather, any attempt to limit consideration of any mitigating factor on the basis of vagueness would run afoul of the constitutional imperatives recognized in Eddings v. Oklahoma, supra. Appellant's twenty-second proposition of law is overruled.

XXI

In his first proposition of law, appellant contends that R.C. 2929.04(A)(7) (the felony-murder aggravating circumstance) essentially replicates the elements of R.C. 2903.01(B) (the offense of aggravated murder) and is therefore unconstitutional. This argument was considered and rejected in State v. Henderson (1988), 39 Ohio St.3d 24, 528 N.E.2d 1237, paragraph one of the syllabus. Appellant further argues that R.C. 2929.04(A)(7) is unconstitutionally vague because it does not define “principal offender.” We do not consider this term to be vague. In State v. Penix (1987), 32 Ohio St.3d 369, 371, 513 N.E.2d 744, 746, we held that “principal offender” denotes “the actual killer.” Appellant's first proposition of law is overruled.

XXII

In his thirteenth proposition of law, appellant urges this court to require that any convictions of a capital offense and any determination that death should be imposed be proven beyond all doubt. This proposition of law is overruled on authority of State v. Jenkins, supra, paragraph eight of the syllabus, and State v. Williams 1986), 23 Ohio St.3d 16, 22, 23 OBR 13, 19, 490 N.E.2d 906, 913.

XXIII

In his eighteenth and twenty-sixth proposition of law, appellant argues that any proportionality review undertaken pursuant to R.C. 2929.05(A) must include consideration of cases where the death penalty was available but not imposed. This proposition of law is overruled on authority of State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph one of the syllabus.

XXIV

In his twenty-fourth proposition of law, appellant contends that the Ohio statutory framework for imposition of the death penalty is violative of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution. These arguments were considered and rejected by this court in State v. Jenkins, supra, at 167–179, 15 OBR at 314–324, 473 N.E.2d at 272–280. Appellant's twenty-fourth proposition of law is not well-taken.

XXV

In his twenty-ninth proposition of law, appellant contends that the errors previously alleged were cumulatively prejudicial and denied him a fair trial. However, we conclude that appellant's prior propositions either “fail to establish errors” or allege errors which are “not outcome determinative.” State v. Moreland (1990), 50 Ohio St.3d 58, 69, 552 N.E.2d 894, 905. Appellant's twenty-ninth proposition of law is overruled.

XXVI

In his nineteenth, twentieth and twenty-first propositions of law, appellant contends that the independent review required of this court pursuant to R.C. 2929.05(A) must yield the conclusion that the aggravating circumstance does not outweigh the mitigating factors beyond a reasonable doubt and that imposition of the death sentence herein would be disproportionate to the sentences rendered in similar cases. Appellant was convicted of two aggravating circumstances pursuant to R.C. 2929.04(A)(3) (murder to escape detection, apprehension, trial or punishment for another offense) and R.C. 2929.04(A)(7) (felony murder). The court of appeals correctly concluded that these two specifications should have been merged for purposes of sentencing. See Part VIII, supra. Accordingly, there exists one aggravating circumstance. Several mitigating factors are advanced by appellant to overcome the aggravating circumstance.

As an initial matter, appellant claims that he exhibited remorse for the murder, surrendered to authorities and confessed to the crime. Without such confessions, appellant contends that the crime would never have been solved. Although “retrospective remorse is to be accorded little weight in mitigation * * *[,]” State v. Post, supra, at 394, 513 N.E.2d at 768, remorse which leads to surrender and confession is a more impressive factor. State v. Hicks (1989), 43 Ohio St.3d 72, 80, 538 N.E.2d 1030, 1039. Nevertheless, the remorse exhibited by appellant is offset to some degree by his other attempts to avoid responsibility. His cooperation was neither total nor immediate. When Detective Kaley visited his residence on August 7, 1985, the initial reaction of appellant was to ask his roommate to lie to the police so he could escape out the side door. In his subsequent conversation with Detective Kaley, appellant denied any participation in the crime. When Detective Kaley left, appellant fled the state. Despite his surrender to Georgia police authorities five days later, he initially represented to Detective Brinson that he did not commit the murder.

Appellant also claims in mitigation that he tried to avoid any confrontation with Mark Klima. In support of this contention, appellant states that he did not enter the house until he was convinced that the occupants (including Mark Klima) had left, he carried no weapon into the house with him and he locked the door behind him. Certainly, these facts are entitled to some weight in mitigation. Appellant also argues that Mark Klima approached him from behind with a knife and that the confrontation resulted in a panic-induced killing. However, other evidence tends to contradict appellant's characterization of his confrontation with Mark Klima. Of the ten or eleven stab wounds suffered by the victim, five were in the back. There is no evidence of a struggle in the living room. Moreover, it is highly improbable that a slightly built fifteen-year-old boy of peaceful disposition armed himself with a knife and attacked an older, stronger burglar.

Appellant further urges in mitigation that he was only twenty-two years of age when the crime was committed. While youth is clearly a mitigating factor under R.C. 2929.04(B)(4), it has not been afforded great weight by this court. See State v. Powell (1990), 49 Ohio St.3d 255, 263, 552 N.E.2d 191, 200 (nineteen-year-old defendant); State v. Benner (1988), 40 Ohio St.3d 301, 319, 533 N.E.2d 701, 719 (defendant was twenty-two and twenty-three at the time the murders were committed). Appellant also presented evidence of his redeeming personality traits. A family friend testified that appellant had been a quiet, sincere boy who had participated in church activities. His former minister, his mother and a second family friend testified that appellant does not have a violent nature. Consequently, appellant argues that his murder of Mark Klima was an aberration. Moreover, appellant's former supervisor at Mansfield State Reformatory testified that appellant was polite, quiet and caused no problems.

In contrast, appellant's former high school unit principal testified that appellant was prone to displays of anger and verbal abuse. Appellant was described by this witness as one of the most “belligerent individuals” he had met in his career. Other testimony also suggested that appellant was capable of acts of violence. Kathy Kelley testified that appellant, speaking about a previous burglary, had told her “that he was glad that he didn't have to hurt anybody in that burglary because he didn't know what he would have done if somebody had seen him * * *.” Testimony was also presented regarding his allegedly kind nature. Susan Hodge, a friend of the Wiles family, stated that appellant was “very good to my children.” She remarked that appellant had once offered to buy her son braces to correct his harelip and cleft palate. Evidence was submitted with respect to appellant's childhood. A psychologist testified that appellant's emotional development had been arrested between the ages of ten and twelve and that he has “an overabundance of conscience * * *.” Appellant had a poor relationship with his father, who was not close to him and gave him little positive reinforcement. Appellant was also extremely close with his older brother Randy, who died when appellant was in the tenth grade. While appellant had a history of drug and alcohol abuse, the record does not indicate that it contributed to the commission of the crime in question. Moreover, he was not under the influence of drugs or alcohol at the time he committed the crime, nor was the burglary undertaken to support a drug habit.

Appellant also contends that he lacked a significant history of prior convictions or delinquency adjudications. See R.C. 2929.04(B)(5). However, appellant did have a previous conviction for aggravated burglary. Inasmuch as that crime involved the same type of activity which forms the basis of the aggravating circumstance in the case sub judice, the conviction cannot be considered insignificant. Appellant contends that he maintained an excellent disciplinary record at the Mansfield Reformatory. Appellant's prison records show that he was disciplined three times in fifteen months. However, on one of these occasions, when appellant disobeyed the demand of a guard, compliance therewith would have constituted a violation of the orders of his supervisor. None of the infractions involved drugs, alcohol or violence. While describing such a record as “excellent” is an exaggeration, it is entitled to some weight in mitigation. Thus, appellant has clearly adduced a modicum of mitigating evidence. However, the extreme violence employed in the commission of the crime and its perpetration in the home of the victim lead us to conclude that the aggravating circumstance outweighs the mitigating factors beyond a reasonable doubt. Appellant's nineteenth, twentieth and twenty-first propositions of law are therefore overruled.

XXVII

In his twenty-sixth proposition of law, appellant contends that imposition of the death penalty in the instant case is disproportionate to sentences given in similar cases.

In determining, pursuant to R.C. 2929.05(A), whether the sentence imposed is disproportionate or excessive, this court must review the disposition of other capital cases reviewed by us where the criminal act involved similar circumstances. Several decisions by this court have approved the death sentence for persons who have committed aggravated murder in the course of aggravated burglary. See State v. Henderson, supra; State v. Holloway (1988), 38 Ohio St.3d 239, 527 N.E.2d 831; State v. Apanovitch (1987), 33 Ohio St.3d 19, 514 N.E.2d 394; State v. Steffen, supra; and State v. Barnes (1986), 25 Ohio St.3d 203, 25 OBR 266, 495 N.E.2d 922.

Appellant contends, however, that all of the preceding cases involved other specifications in addition to aggravated burglary. Inasmuch as the two specifications charged in the case at bar must be merged, the aggravated burglary specification constitutes the only aggravating circumstance. However, since the filing of appellant's brief, this court has decided State v. Landrum, supra.

Despite the presence in Landrum of only one aggravating circumstance, the same one present herein (aggravated burglary), this court upheld the imposition of the death penalty in that case. Accordingly, the sentence rendered herein is not disproportionate to penalties imposed in similar cases. Appellant's twenty-sixth proposition of law is overruled. The judgment of the court of appeals is therefore affirmed.

MOYER, C.J., and SWEENEY, HOLMES, DOUGLAS, HERBERT R. BROWN and RESNICK, JJ., concur. WRIGHT, J., concurs in judgment only.

State v. Wiles, 126 Ohio App.3d 71, 709 N.E.2d 898 (Ohio App. 11 Dist. 1998). (PCR)

Following final affirmance of his felony-murder conviction and sentence of death, 59 Ohio St.3d 71, 571 N.E.2d 97, petitioner sought post-conviction relief. The Portage County Court of Common Pleas dismissed petition without hearing, and petitioner appealed. The Court of Appeals, Nader, J., held that: (1) petitioner was entitled to have state's response to petition stricken as untimely; (2) erroneous denial of motion to strike was harmless; (3) post-conviction court did not abuse its discretion in impliedly denying petitioner discovery; (4) findings and conclusions in connection with summary dismissal of petition were insufficient and precluded effective appellate review; (5) petitioner's claim that his former attorney could be presumed to have shared with prosecutor's office information useable to defend against post-conviction petition was not barred by res judicata; (6) petitioner was entitled to hearing on such claim; and (7) petitioner's claim that statutory post-conviction relief procedure was not effective remedy for alleged violations of federal constitutional rights was not cognizable on direct appeal from dismissal of petition for post-conviction relief. Reversed and remanded with instructions. Christley, J., concurred with separate opinion. Ford, P.J., concurred in result only.

Wiles v. Bagley, 561 F.3d 636 (6th Cir. 2009). (Habeas)

Background: Following affirmance of aggravated murder conviction and sentence of death, 571 N.E.2d 97, petition for writ of habeas corpus was filed. The United States District Court for the Northern District of Ohio, Paul R. Matia, J., 2005 WL 1181859, denied the petition. Petitioner appealed.

Holdings: The Court of Appeals, Sutton, Circuit Judge, held that: (1) trial counsel's failure to uncover certain evidence while preparing for mitigation hearing did not prejudice petitioner, and (2) trial counsel's failure to adequately prepare psychologist for mitigation hearing did not prejudice defendant. Affirmed. Martin, Circuit Judge, filed opinion concurring.

SUTTON, Circuit Judge.

Mark Wiles murdered a fifteen-year-old boy with a kitchen knife during a botched burglary in 1985. After he waived his right to a jury trial, a panel of three Ohio judges convicted him of aggravated murder and aggravated burglary, then sentenced him to death. After exhausting his state-court appeals and post-conviction remedies, Wiles sought a writ of habeas corpus under 28 U.S.C. § 2254, arguing (among other things) that he was denied the effective assistance of counsel under the Sixth and Fourteenth Amendments. Because Wiles has not shown that he was prejudiced by his counsel's alleged shortcomings, we affirm.

I.

In 1982, Wiles went to work as a part-time laborer for Charles and Carol Klima on their horse farm, where they lived with their son Mark. State v. Wiles, 59 Ohio St.3d 71, 571 N.E.2d 97, 103 (1991). One day in early 1983, the family learned that $200 in cash was missing. That same day, Wiles had reported for work, but he could not be found after the Klimas learned of the missing cash, and he did not return to collect his paycheck or for that matter return to work any longer on the farm. Id. at 103-04. In the spring of that year, Wiles began serving a 4-25 year sentence in an Ohio prison for an unrelated burglary he had committed the previous year.

On August 7, 1985, after serving eighteen months of this sentence, Wiles returned to the Klima farm, entered the unlocked house while the family was gone and began to search the house for valuables. Wiles, 571 N.E.2d at 104. While he was still in the house, Mark Klima returned and confronted him. Id. Wiles stabbed the boy 24 times with a kitchen knife, stole approximately $260 and fled. Id. Carol Klima returned home to find her unconscious son lying on the floor with a knife buried in his back. Id. Later that day, Mark Klima died in a hospital emergency room. Id. Wiles initially fled from the authorities. Five days after the murder, however, he turned himself in to the police in Savannah, Georgia, telling them that he was wanted for murder in Ohio. Id. at 105. After being informed of his rights, he told the police what he had done and signed a confession admitting that he had killed Klima. Id.

A state grand jury indicted Wiles for aggravated murder and two counts of aggravated burglary-one for the 1985 home invasion, one for the 1983 $200 theft. Id. at 105-06. He waived his right to a jury, and a three-judge panel heard his case. Id. at 106-07. After the guilt phase of the proceedings, the court determined that there was insufficient evidence that he had committed the 1983 burglary but convicted him on the aggravated-murder and the other aggravated-burglary count. Id. at 107. After a mitigation hearing, the court determined that neither Wiles' youth (he was 22-years old at the time of the murder) nor his confession outweighed the aggravating circumstances of his crime. Id. at 107-08. The court imposed a death sentence, and the Ohio Court of Appeals and the Ohio Supreme Court affirmed his conviction and sentence. Id. at 108, 125; State v. Wiles, No. 1675, 1988 WL 59838, at *10 (Ohio Ct.App. June 3, 1988).

Wiles filed a state post-conviction petition, which included a claim that his trial counsel had provided constitutionally inadequate assistance at the mitigation phase of the trial. The state trial and appellate courts rejected the petition. In rejecting his ineffective-assistance claim, the court of appeals concluded that Wiles “ha[d] failed to demonstrate ineffective assistance of his trial counsel at the ... penalty phase” and that “he [was] unable to demonstrate with a reasonable probability that the result at trial would have been different” if his counsel had not made the alleged errors. JA 918. The Ohio Supreme Court declined review. State v. Wiles, 93 Ohio St.3d 1412, 754 N.E.2d 260, 260 (2001). In 2002, Wiles filed a petition for a writ of habeas corpus in federal court, raising 36 claims. The district court denied the petition in 2005 and declined to issue a certificate of appealability on any of the claims. Wiles sought a COA from us, which we granted with respect to the claim that his attorneys failed him at the penalty phase of his trial.

II.

To establish ineffective assistance of counsel, a claimant must show two things. He must establish that his attorneys' performance was “deficient,” which “requires showing that [they] made errors so serious that [they were] not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). And he must show that “there is a reasonable probability that, but for counsel's [failure to investigate], the result of the [mitigation hearing] would have been different.” Id. at 694, 104 S.Ct. 2052. Like all claimants seeking federal habeas relief after 1996, Wiles faces another hurdle: the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214. Under that legislation, we may grant the writ only if the state court of appeals' decision “was contrary to, or involved an unreasonable application of, clearly established federal law.” 28 U.S.C. § 2254(d)(1).

A.

In maintaining that his trial counsel did not adequately prepare for the mitigation hearing, Wiles claims that his attorneys failed (1) to uncover abuse in his childhood, (2) to uncover that he had taken barbiturates before entering the Klimas' house on the day of the murder and (3) to investigate a head injury he received twelve days before the murder. Even if we grant for the sake of argument that these claimed lapses meet the first prong of Strickland (ineffective assistance), they do not meet its second prong (prejudice). *639 See Poindexter v. Mitchell, 454 F.3d 564, 572 (6th Cir.2006). Wiles has not shown that “there is a reasonable probability” that, but for this alleged absence of investigation, “the result” of the mitigation hearing “would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Above all, the new evidence does not “differ[ ] markedly from the testimony and evidence the [three-judge panel] in fact considered.” Hill v. Mitchell, 400 F.3d 308, 332 (6th Cir.2005).

First, the new family-history evidence about Wiles' father and mother adds little to what was introduced at the mitigation hearing. As to his father: Counsel introduced evidence at the trial showing that his father was “stern,” JA 1037, that he was “less tolerant with [Wiles] than he was [with] the other[ ] [children]” and that he viewed Wiles as an “interference ... in [the family's] life” because “[Wiles] was not a planned child,” JA 1302-03. A counselor's report also described the following incident between Wiles and his father when Wiles was 17: Mark has been high everyday during the past week. Sat. 1-10 his father and him got into a fight. His father got rough w/ him. Mark got pushed down some steps. Mark[']s father called the police and had him charged w/ intoxication. Mark was placed in detention.... JA 981.

Most of the ostensibly new evidence represents variations on this same theme. For example: Wiles claims that the court should have heard that his father was emotionally distant-that he was “not one to touch much,” JA 783; that, after Wiles began serving time in prison for his first burglary in 1983, his father “washed [his] hands of him and did not visit him,” JA 744; that his father stated that he “never wanted that bastard anyway,” JA 746; that he told Wiles that he “would never amount to anything and that he did not want him,” id.; and that Wiles suffered “emotional[ ] and physical[ ] abuse” from his father, JA 747, though the affidavit to this effect (from his sister Jona) offers no details about any incidents of physical violence. All of this evidence adds little to the picture that counsel already had painted of Wiles' father: a man who did not like Wiles, who resented him as an unwanted addition to the family and who, on occasion, “got rough” with him, JA 981. This is precisely the “kind of cumulative evidence that does not show prejudice,” Brooks v. Bagley, 513 F.3d 618, 626 (6th Cir.2008), because it does not “differ in a substantial way-in strength [or in] subject matter-from the evidence actually presented at sentencing,” Hill, 400 F.3d at 319.

Wiles, however, does identify one new piece of evidence that was not covered at the trial-the allegation that his father was “sexually inappropriate with his sisters.” JA 754. According to Wiles' post-conviction psychological expert, Robert Smith, “Wiles reluctantly disclosed that his father was ‘sexually inappropriate’ with his sisters.” JA 754. New though this allegation may be, it is not corroborated: Neither Wiles' father, his sister, nor his mother mentions any such abuse in their affidavits. Even if we accept the allegation as credible, moreover, it still amounts to exceedingly weak mitigation evidence, because nothing shows that Wiles was aware of this abuse at the time of the murder, and there is no evidence that it caused him any psychological harm beyond what he had already experienced at the hands of a distant and sometimes abusive father. Confirming the point, Smith does not refer to these allegations in discussing Wiles' troubled relationships, his overall diagnostic impressions of Wiles or his impressions of Wiles' mental state at the time of the crime. Absent evidence that Wiles knew of the abuse or even evidence about how it might have affected his psychological profile, we see no tenable basis on which it could have altered the three-judge panel's sentence.

As to Wiles' mother: Counsel offered evidence at the mitigation hearing from a school psychologist who said that his “mother [was] ignoring” and that the family was “not close.” JA 1037. Wiles claims that his attorneys also should have introduced evidence that his mother “was quite depressed and cleaned the house all the time for [their] father.” JA 746. The expert witness, Smith, likewise spoke of the mother's “long-standing history of depression,” which prompted her to “spen[d] a considerable amount of time sleeping and withdrawing from the family and others.” JA 755. But this evidence adds little to what the three-judge panel heard. There is no indication that the depression affected Wiles in any way beyond causing his mother to “withdraw[ ]” from the family, id., and a similar theory was put before the three-judge court when it heard evidence that she “ignor[ed]” him, JA 1037.

Second, the ostensibly new evidence of drug use suffers from a similar flaw. Wiles argues that his counsel failed to introduce evidence about his “drug problems, which escalated after an industrial accident which caused the tragic death of his brother.” Br. at 20. Yet this evidence, once again, largely duplicates what the judges already heard. Wiles' attorneys presented ample evidence at the mitigation hearing of Wiles' history of drug and alcohol abuse, the death of his brother Randy and the impact these events had on him.

Here, too, there is an exception. Wiles argues that his prior attorneys should have discovered-and should have presented to the court-evidence that he ingested “3 or 4 barbiturates shortly before entering the Klima home,” which prevented him from thinking “clearly” at the time of the offense. Br. at 11-12. Even if we accept this new evidence as true, even if we accept that his counsel did not know about this fact and even if we overlook the conspicuous oddity that Wiles himself did not tell his counsel about this background information, there is no prejudice and indeed the omission of this evidence likely benefited Wiles. For one thing, this evidence directly contradicts his confession to the crime, in which he denied consuming drugs on the day of the murder or within the previous twelve days. The claim therefore was readily impeachable, making it unlikely to change the outcome of the hearing for that reason alone. See Owens v. Guida, 549 F.3d 399, 411 (6th Cir.2008). For another, Wiles' mitigation strategy emphasized, quite understandably, that he had confessed truthfully in all respects to the crime, see Wiles, 1988 WL 59838, at *8, but this evidence would have undercut that mitigation theme. For still another, it is hardly self-evident that getting high on barbiturates before stabbing someone to death is the kind of evidence that makes a capital defendant look better in the eyes of a court as opposed to “mak[ing] him look even worse.” Carter v. Mitchell, 443 F.3d 517, 532 (6th Cir.2006). Wiles had little to gain from this new evidence and much to lose by introducing it. He thus cannot show prejudice by its omission.

Third, Wiles contends that his counsel failed him by not investigating a head injury he sustained twelve days before the murder. As Wiles tells it, a man named Joe Kelly “jumped [him] and hit [him] on the head with a tire iron” when he was leaving a bar, knocking him unconscious. Br. at 12-13. He arrived at the emergency room with cuts on his face and with his right eye “swollen shut,” JA 568, and an examination showed that he had “multiple facial bone [fractures],” id. After doctors cleaned and closed his wounds, Wiles left the hospital against medical advice, only to return five days later complaining of “dizziness, somnolence and difficulty walking.” Id. Notably absent from the record is any evidence that Wiles was still experiencing symptoms from his head injury on the day he murdered Mark Klima. Wiles argues only that investigation by his counsel prior to the mitigation hearing, including “retention of a neurologist and a follow up CAT SCAN, may have assisted counsel ... in explaining to the fact finders a causal ... connection between the head injury and [his] uncharacteristic violent behavior.” Br. at 13-14. But such “speculation” as to the effects still-further investigation might have on the outcome of this theory at the mitigation hearing does not by itself establish prejudice. See Slaughter v. Parker, 450 F.3d 224, 234 (6th Cir.2006). This claim, too, necessarily fails. All of these arguments considered, the state court of appeals reasonably applied Strickland in concluding that Wiles failed to show prejudice from the failure to present this additional evidence.

B.

Wiles separately argues that his attorneys did not adequately prepare Dr. Willis Carpenter Driscoll, a psychologist, for the mitigation hearing: They gave Driscoll too little time to prepare for the hearing because they hired him a week before the hearing; Driscoll interviewed Wiles for just two hours and never spoke to any of his family, friends or coworkers; and Driscoll never reviewed Wiles' educational records. Driscoll's inadequate preparation, according to Wiles, led him to testify in a way that failed to convey a useful mitigation theory to the three-judge panel. Even if we accept this theory of ineffective assistance for the sake of argument, Wiles again has failed to show prejudice.

Driscoll's inadequate preparation, Wiles urges, caused Driscoll to admit a damning fact on cross-examination, namely that “one of the many factors” that motivated Wiles to kill Klima was that the boy was “the only witness” to the burglary. JA 1421. But it is hard to see how this admission could have affected the death sentence. By this stage in the case, the three-judge panel already had determined that Wiles killed Klima “for the purpose of escaping detection, apprehension, trial or punishment for another crime.” Wiles, 571 N.E.2d at 106. Once the panel found that fact to be true beyond a reasonable doubt, defense counsel had every reason to accept, rather than challenge, that premise of the guilt determination and to work with, rather than reargue, the point during the mitigation hearing. A psychologist's “admission” of a fact at a mitigation hearing, one already established beyond a reasonable doubt at the liability hearing, does not establish prejudice.

Nor has Wiles succeeded in showing that a better-prepared expert would have given more useful testimony. As an example of what a well-prepared expert would have said, he offers the affidavit of Robert Smith, who has a Ph.D., a license in clinical psychology and extensive clinical experience in that field, and who has interviewed Wiles and reviewed the relevant records in this case. But Smith's submission, too, adds little to what the court heard at the hearing.

Smith opines that “the antisocial behaviors reported by Mr. Wiles are directly related to his substance dependence” and says that the murder was a “direct result” of Wiles ingestion of barbiturates. JA 765, 767. As explained, however, linking Wiles' conduct to drug abuse was already in front of the panel and linking the crime to the recent consumption of barbiturates was inconsistent with his confession and with the prevailing theme of his case for leniency. The other explanation Smith offers for the murder was that Wiles had “interpersonal difficulties,” in particular a poor relationship with his parents and a brother who died shortly before Wiles began high school. JA 767. But, as mentioned, the three-judge panel heard considerable testimony regarding Wiles' difficult family circumstances, including Driscoll's opinion that Wiles' “emotional development ha[d] been arrested at the age of 10[to] 12” due, in part, to the “dearth of warmth from his father,” JA 1399, and that Wiles' desire “to punish himself” due to an overabundance of guilt led him to kill Klima, JA 1424. In the end, Wiles has not shown that he was prejudiced by his counsel's preparation of and reliance on Driscoll or that the state court of appeals unreasonably concluded otherwise.

III.

For these reasons, we affirm.

BOYCE F. MARTIN, JR., Circuit Judge, concurring.

I concur in the panel opinion. Wiles has not shown that his counsel was unconstitutionally ineffective during the mitigation phase of his trial. * * * Now in my thirtieth year as a judge on this Court, I have had an inside view of our system of capital punishment almost since the death penalty was reintroduced in the wake of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). During that time, judges, lawyers, and elected officials have expended great time and resources attempting to ensure the fairness, proportionality, and accuracy that the Constitution demands of our system. But those efforts have utterly failed. Capital punishment in this country remains “arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair.” Moore v. Parker, 425 F.3d 250, 268 (6th Cir.2005) (Martin, J., dissenting). At the same time, the system's necessary emphasis on competent representation, sound trial procedure, and searching post-conviction review has made it exceedingly expensive to maintain.

The system's deep flaws and high costs raise a simple but important question: is the death penalty worth what it costs us? In my view, this broken system would not justify its costs even if it saved money, but those who do not agree may want to consider just how expensive the death penalty really is. Accordingly, I join Justice Stevens in calling for “a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces.” Baze v. Rees, --- U.S. ----, 128 S.Ct. 1520, 1548-49, 170 L.Ed.2d 420 (2007) (Stevens, J., concurring). Such an evaluation, I believe, is particularly appropriate at a time when public funds are scarce and our state and federal governments are having to re-evaluate their fiscal priorities.FN1 Make no mistake: the choice to pay for the death penalty is a choice not to pay for other public goods like roads, schools, parks, public works, emergency services, public transportation, and law enforcement. So we need to ask whether the death penalty is worth what we are sacrificing to maintain it.

FN1. Here, I will focus on the public costs of capital punishment. But it has significant, often overlooked private costs as well. See, e.g., Thomas P. Sullivan, Efforts to Improve the Illinois Capital Punishment System: Worth the Cost?, 41 U. Rich. L.Rev.. 935, 967 (2007) (noting “the psychological and often the financial injuries inflicted on victims' families,” upon the defendant's family, and upon the defendants themselves); Charles S. Lanier & James R. Acker, Capital Punishment, The Moratorium Movement, and Empirical Questions: Looking Beyond Innocence, Race, and Bad Lawyering in Death Penalty Cases, 10 Psych. Pub. Pol. & L.. 577, 603 (2004) (discussing the “host of secondary victims” affected by capital punishment). And, while this is a matter that would benefit from further study, FN2 the evidence indicates that, on average, every phase of a capital case is more expensive than in a non-capital case, and that the lifetime cost of a capital case is substantially more than the cost of incarcerating an inmate for life without parole.FN3 Surprising as that may seem, the reason for it is simple: “lawyers are more expensive than prison guards.” FN4

FN2. See, e.g., Susan S. Everingham, Rand Corp., Investigating the costs of the Death Penalty in California (2008) (discussing challenges in assessing the total costs of the death penalty), available at www. rand. org/ pubs/ testimonies/ CT 300/. One aspect of this problem that merits further attention is the relationship between the threat of a capital charge and plea bargain rates. Compare Kent S. Scheidegger, Criminal Justice Legal Foundation, The Death Penalty and Plea Bargaining to Life Sentences (2009) (arguing that the availability of the death penalty affects plea bargain rates), available at www. cjlf. org/ papers/ wpaper 09- 01. pdf, with Ilyana Kuziemko, Does the Threat of the Death Penalty Affect Plea Bargaining in Murder Cases? Evidence from New York's 1995 Reinstatement of Capital Punishment, 8 Am. L. & Econ. Rev. 116 (2006) (concluding that availability of a capital charge affects the terms of plea bargains but not their frequency). FN3. For data on the costs of state capital cases, see California Commission on the Fair Administration of Justice, Final Report 147 (2008) (estimating that a system of life without parole would save $121.2 million annually); John Roman, et al., Urban Institute, The Cost of the Death Penalty in Maryland 2 (2008) (finding that average lifetime cost of a capital case is $1.9 million more than the average non-capital case); Washington State Bar Association, Final Report of the Death Penalty Subcommittee of the Committee on Public Defense (2006) (finding that the cost of a capital trial and post-conviction proceedings is $467,000 more than life without parole); Mary E. Forsberg, New Jersey Policy Perspective, Money for Nothing? The Financial Cost of New Jersey's Death Penalty Y (2005) (finding capital punishment created $253 million in additional costs from 1983 to 2005, or $11 million per year); State of Kansas, Legislative Division of Post Audit, Costs Incurred for Death Penalty Cases: A K-Goal Audit of the Department of Corrections 10 (2003) (estimating the median cost of a capital case to be $1.2 million through execution-70% more than life without parole); Indiana Criminal Law Study Commission, Commission Report on Capital Sentencing (2002) (finding death penalty system is 35-38% more costly than one of life without parole); S.V. Date, The High Price of Killing Killers: Death Penalty Prosecutions Cost Taxpayers Millions Annually, Palm Beach Post, Jan. 4, 2000, at 1A (estimating that the death penalty costs Florida an additional $51 million annually); Philip J. Cook & Donna B. Slawson, The Costs of Processing Murder Cases in North Carolina 78 (1993) (“The extra cost per execution of prosecuting a case capitally is more than $2.16 million.”); Christy Hoppe, Executions Cost Texas Millions Study Finds It's Cheaper to Jail Killers for Life, Dallas Morning News, Mar. 8, 1992, at 1 A (reporting that the cost of an average capital case was $2.3 million-three times as much as a non-capital case imposing a 40-year sentence); Pamela Manson, Matter of Life or Death: Capital Punishment Costly Despite Public Perception, It's Cheaper to Keep Killers in Prison, Ariz. Republic, Aug. 23, 1993, at A1; Stephen Magagnini, Closing Death Row Would Save State $ 90 Million a Year, Sacramento Bee, Mar. 28, 1988, at A1; Robert Spangenberg & Elizabeth R. Walsh, Capital Punishment or Life Imprisonment? Some Cost Considerations, 23 Loyola L.A. L.Rev. 45 (1989); Margot Garey, Comment, The Cost of Taking a Life: Dollars and Sense of the Death Penalty, 18 U.C. Davis L.Rev. 1221 (1985).

For trial cost data on the federal level, see Jon B. Gould & Lisa Greenman, Judicial Conference Committee on Defender Services, Update on the Cost, Quality, and Availability of Defense Representation in Federal Death Penalty Cases 24 (2008) (finding the median defense cost of authorized cases to be $353,185 as opposed to $44,809 in non-authorized cases), available at www. uscourts. gov/ defender services/ FDPC_ Contents. cfm. The report does not address the costs of prosecution or post-conviction costs. FN4. U.C. Berkeley Law Professor Franklin Zimring, quoted in Sam Howe Verhovek, Across the U.S., Executions are Neither Swift Nor Cheap, N.Y. TIMES, February 22, 1995, at A1. To begin, capital cases involve more pre-trial and trial costs than non-capital cases.FN5 Capital cases are far less likely to be resolved through plea bargain,FN6 and they generally require far greater time, support services, and expertise to prepare.FN7 And capital trials are generally longer and more complex that non-capital trials. Beyond more attorneys and attorney time, capital cases tend to involve more experts and related expenses from experts and support staff.FN8 They also require a “death-qualified” jury,FN9 and bring the added costs of the “second trial” conducted during the penalty phase.FN10 And, because both sides of a capital case are usually funded at public expense, these additional costs must be counted twice in calculating the added cost of a capital prosecution. FN11

FN5. See, e.g., Roman et al., supra note 3, at 30 (“The majority (70%) of the cost differential between a death notice and a non-death notice case occurs during the trial phase. This difference is due to a greater number of pre-trial motions, longer and more intensive voir dire, longer trials and a greater amount of general preparation time.”). FN6. Roughly 95% of state and federal felony cases are resolved through plea bargain. Russell D. Covey, Fixed Justice: Reforming Plea Bargaining with Plea-Based Ceilings, 82 Tul. L.Rev.. 1237, 1238 (2008). Most capital cases, on the other hand, proceed to trial. Alex Kozinski & Sean Gallagher, Death: The Ultimate Run-On Sentence, 46 Case W. Res. L.Rev. . 1, 11 (1995) (“80% of capital cases go to trial.”); Gould & Greenman, supra note 3, at 18 (reporting that 65% of capital cases handled by federal defenders between 1998 and 2004 went to trial). FN7. See, e.g., American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases 3 (rev. ed. 2003) (“[D]eath penalty cases have become so specialized that defense counsel have duties and functions definably different from those of counsel in ordinary criminal cases.”). The ABA Guidelines go on to outline these duties and functions in detail. FN8. Gould & Greenman, supra note 3, at 29 (“The use of experts has a substantial influence on case cost.... [E]xperts were utilized in both authorized and non-authorized cases. There is a significant difference, however, in the prevalence, and hence cost, of expert assistance between authorized and non-authorized cases.”).

FN9. As the 2006 Report by the Washington State Bar explains, “Since a very large number of potential jurors likely will be excused, it is not uncommon for the court to summon over 1,000 potential jurors.... In a non-capital case, fewer than 100 potential jurors are typically summoned.” Final Report of the Death Penalty Subcommittee of the Committee on Public Defense, supra note 3, at 16. Capital cases also involve much more searching, individualized voir dire than non-capital cases. As a result, jury selection in a capital case can take a month instead of one or two days. Id. at 16-17. FN10. See generally American Bar Association, Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (2008). FN11. “[V]ery few” capital defendants can afford to pay for their own defense, so they rely upon public defenders or counsel appointed by the court under the Criminal Justice Act. Gould & Greenman, supra note 3, at 16-17. Capital cases also involve a significantly longer post-conviction appeal process than non-capital cases. Unlike non-capital cases, capital cases almost invariably proceed through all avenues of post-conviction relief, including direct appeal, state post-conviction proceedings, at least one federal habeas petition, and multiple petitions for certiorari. Naturally, this is because capital defendants (and advocacy groups) have a much stronger motive to pursue post-conviction remedies. But that is their right. Plus, experience has shown that every stage of review is needed to guard against wrongful convictions and correct the unusually high rate of error that plagues capital cases.FN12 However, the upshot of higher rates of collateral attack and reversal is that state and federal courts are packed with capital cases,FN13 and the cases themselves take decades to wind their way through the system.FN14 More appeals means more costs, regardless of why the appeals arise. And reversal means repeating all or part of the process and thus duplicating its time and expense.

FN12. A prominent study of state and federal capital cases between 1973 and 1995 fixed the overall error rate in capital cases at 68% (as opposed to 15% in non-capital cases). James S. Liebman, Jeffrey Fagan & Valerie West, A Broken System: Error Rates in Capital Cases 1973-1995 at 8-9 (2000), available at www2.law.columbia.edu/instructional services/liebman/. The study further found that 40% of the death sentences that were upheld on direct appeal and through state post-conviction were subsequently overturned during federal habeas proceedings. Id. at 6. FN13. Including Wiles, 118 of Ohio's 166 death row inmates (71%) have cases pending in federal court. Richard Cordray, Ohio Attorney General, Capital Crimes Annual Report: State and Federal Cases 2008 at 22 (2009). 28 more (17%) have cases pending in state court. Id. FN14. This case, involving a death sentence imposed in 1986 (when the law clerk assisting me on this case was three years old), is unexceptional in this regard. The average elapsed time from sentence to execution in 2007 was 153 months-twelve years and nine months. Tracy L. Snell, Bureau of Justice Statistics, Capital Punishment, 2007-Statistical Tables (2008), available at www. ojp. usdoj. gov/ bjs/ pub/ html/ cp/ 2007/ cp 07 st. htm. The median elapsed time since sentencing for inmates on death row at the end of 2007 was 133 months. Id. So, in almost every way, capital cases are more expensive than non-capital cases.FN15 And given the death penalty's exorbitant costs and many basic flaws, it is clear to me that our scarce public resources can be put to better use. This is especially so given what the public is getting for its money-little more than the time of lawyers and judges and the “illusion” of capital punishment.FN16 Moral objections aside, the death penalty simply does not justify its expense.

FN15. This is in spite of the fact that capital defense services continue to be underfunded, much to the prejudice of indigent capital defendants. See generally Stephen Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime, but for the Worst Lawyer, 103 Yale L.J. 1835 (1994); see also Aba Moratorium Implementation Project, State Death Penalty Assessments: Key Findings (2007) (finding, among other things, “[T]hat ... (4) Capital indigent defense systems, whether statewide or county-by-county, generally are significantly underfunded; (5) Many states are failing to provide for the appointment of two lawyers at all stages of a capital case, nor are they guaranteeing access to investigators and mitigation specialists; (6) Many states are requiring only minimal training and experience for attorneys handling death penalty cases; and (7) The compensation paid to appointed capital defense attorneys is often woefully inadequate, dipping to well under $50 per hour in some cases”) (emphasis added). FN16. Kozinski & Gallagher, supra note 6, at 3. Only nine of the thirty-six states which retain the death penalty carried out executions in 2008, a year in which there was a total of thirty-seven executions nationwide. Snell, supra note 14. At the end of 2007, there were 3,220 prisoners on death row. Id. Whatever one's opinion of the intractable debate over deterrence, the empirical evidence is too inconclusive to warrant much weight. See generally John J. Donohue & Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 Stan. L.Rev.. 791 (2005) (conducting an exhaustive review of the empirical literature on the death penalty and concluding, “Our estimates suggest not just ‘reasonable doubt’ about whether there is any deterrent effect of the death penalty, but profound uncertainty. We are confident that the effects are not large, but we remain unsure even of whether they are positive or negative”). Recent news reports indicate that the cost of the death penalty is becoming part of the public debate on capital punishment and has begun to influence policymaking.FN17 That strikes me as a very positive development. I hope it continues.

The victim