DEFENDANT’S MOTION TO ALLOW THE DEFENSE
TO ARGUE LAST AT THE MITIGATION PHASE

	Defendant, through counsel, respectfully requests this Court to allow the defense to argue last at the penalty phase.

MEMORANDUM IN SUPPORT

		In State v. Jenkins, 15 Ohio St. 3d 164, 214-15, 473 N.E.2d 264, 307-08 (1984), the Ohio Supreme Court stated that the decision to allow the defense to open and close final argument in the mitigation phase is within the sound discretion of the trial court.  Jenkins, makes it clear that the trial court properly may allow the defense the right to argue to the jury last.
		Support for this order of argument can also be found in Ohio Rev. Code Ann. § 2945.10(D), which states that in the furtherance of justice, the trial court may permit evidence to be offered by either side out of order.  In addition, O.R.C. § 2929.04(C) states that the accused shall be given great latitude in the presentation of evidence at the mitigation phase.  While these two statutes deal with the presentation of evidence, their permissive nature and their underlying purposes apply equally to issues involving closing argument.  These statutes stand for the proposition that the order of proceedings should be determined in accord with the principles of fairness and due process.  In light of the fact that the purpose of the mitigation phase is to allow the defendant to show reasons why he should not be put to death, justice would be furthered if the defense is allowed to argue last.
		Ohio Rev. Code Ann. § 2929.03(D)(1) states that the prosecution must prove beyond a reasonable doubt that the aggravating circumstances of which the accused was convicted outweigh the mitigating factors.  Notwithstanding the fact that the prosecution bears a burden at the mitigation phase, a more careful examination of the practical application of the statute indicates that the burden is largely illusory.  Once the prosecution proves the specifications, it need do nothing at the penalty phase.  If the defense chooses not to put on any mitigating evidence, there is nothing to be weighed against what at that point equals proof beyond reasonable doubt of the aggravating circumstances favoring a death penalty.  If Defendant fails to present mitigating factors to create a reasonable doubt in the minds of the jurors, the jury will return a death verdict.  The defense should be allowed to argue last since he is the party who would be defeated if no evidence was offered by either side during the mitigation phase.
	Allowing the defense to argue last at the penalty phase is not without precedent under Ohio’s 1981 statutory death penalty scheme.  In the following cases, the defense was permitted to give final summation during the penalty phase of the trial:  State v. Herman Rucker, No. 82-CR-018 (Wayne Cty. C.P.); State v. Robert Shields, No. CR-273004-B (Cuyahoga Cty. C.P.); State v. David Steffen, No. B824004 (Hamilton Cty. C.P.); State v. Randy Fellows, No. 82-CR-470 (Trumbull Cty. C.P.); State v. John Wm. Byrd, No. B831662 (Hamilton Cty. C.P.); State v. David Russell, No. 82-CR-5246 (Clermont Cty. C.P.); State v. Andrew Majoris, No. CR-182588-A (Cuyahoga Cty. C.P.); State v. Timothy Wingo, No. 83CR79 (Ross Cty. C.P.); State v. Donald Sumser, No. CR-83-3466 (Stark Cty. C.P.); State v. Gregory Esparza, CR-83-6603 (Lucas Cty. C.P.); State v. Earnest Gaither, No. CR-84-02-0125 (Butler Cty. C.P.); and State v. Melvin Bonnell, No. CR-223820 (Cuyahoga Cty. C.P.).
	Due process considerations support allowing the defense to argue last.  A case of this magnitude deserves the maximum judicial consideration to guarantee a fair trial.  The United States Supreme Court has recognized that “death is a different kind of punishment, than any other which may be imposed in this country.”  Gardner v. Florida, 430 U.S. 349 (1977).  It is clear that a higher standard of due process is required in death cases then other cases because of the severity and finality of the punishment which may be involved.  The Supreme Court, in considering the scope of due process stated:  “[I]t is the universal experience in the administration of criminal justice that those charged with capital offenses are granted special considerations.”  Griffin v. Illinois, 351 U.S. 12, 28 (1956).   See also Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998) (five Justices recognized a distinct “life” interest protected by the Due Process Clause in capital cases above and beyond liberty and property interests).
	Defendant respectfully requests this Court to structure the penalty phase so that the defense speaks to the jury last.