[Deathpenalty] death penalty news-----OHIO

[Rick Halperin]

Feb. 17


OHIO:

Experts: Verdicts Unusual in Murder Case


An unusual verdict in the case of a former police officer accused of
killing his pregnant lover opens up possible grounds for appeal if he's
sentenced to death, some legal experts say.

After deliberations spanning four days, a jury convicted Bobby Cutts Jr.
on Friday of murdering Jessie Davis. Jurors found him guilty of aggravated
murder in the death of her nearly full-term fetus, a stronger charge that
makes him eligible for the death penalty.

Aggravated murder includes intent to kill with prior calculation and
design.

Victor Streib, a law professor at Ohio Northern University and an expert
on the death penalty, said he questions the split decision.

"I think they (the mother and fetus) are a package, and you have to treat
them the same way," Streib said. "Either they were both premeditated
murders or not."

Jurors are to return Feb. 25 to hear evidence on whether to recommend the
death penalty for Cutts, 30.

Defense attorneys asked for a mistrial, saying the lesser charge of murder
for Davis was inconsistent with an aggravated murder conviction for the
fetus. Both allegations against Cutts were based on the same facts, the
defense said.

Stark County Common Pleas Judge Charles E. Brown Jr. rejected the request
and said he had studied related court rulings and found that the
allegations involved two separate individuals. The defense objected to his
ruling, preserving the issue for a possible basis for an appeal.

"It sounds like the jury had a tremendous amount of sympathy for the
unborn child," said Joe Wilhelm, a lawyer with the Ohio Public Defender
Office.

Ohio is 1 of at least 37 states with fetal homicide laws, making it a
crime to harm a fetus during an assault on a pregnant woman, according to
the National Conference of State Legislatures. However, the laws in each
state vary.

In Ohio, the law allows a murder charge against someone accused of killing
a fetus that would have been able to live outside the womb. Davis died
just weeks before she was due to give birth.

Prosecutors argued that Cutts strangled Davis in her home last June to
avoid making child support payments for a fourth child. Besides being the
father of Davis' toddler son and unborn daughter, Cutts also has a child
with his ex-wife and a child with a former girlfriend.

Cutts testified that he accidentally killed Davis, 26, with an elbow to
her neck as he was trying to leave her house and she didn't want him to
go. He said he tried to call 911 using her cell phone but that he couldn't
get the phone to work. Panicked that no one would believe it was an
accident, Cutts said, he dumped her body in a park.

Asked under cross-examination if he thought the fetus died when Davis
died, Cutts said he didn't know.

Lori Shaw, a University of Dayton law professor, said the verdict seems
complicated, but the jury could have reasoned that Cutts' intent was to
injure the fetus  perhaps causing a miscarriage  and not to kill the
mother. In that scenario, the jury's verdict of aggravated murder for the
fetus alone makes sense, she said.

The judge issued a gag order, and attorneys on both sides have declined to
comment.

Ohio has never executed someone for killing an unborn child, and legal
experts said they can't recall anyone in the U.S. who was sentenced to die
based solely on the killing of a fetus.

"This is unusual," said Richard Dieter, executive director of the Death
Penalty Information Center in Washington. "I don't know how the courts
will figure this one out."

(source: Associated Press)