County: Double jeopardy irrelevant

A visiting judge will render a decision in the long-running case.
WARREN -- The Trumbull County Prosecutor's Office says the issue of double jeopardy is not applicable in the ongoing legal maneuverings to spare Danny Lee Hill from the death penalty.
The double jeopardy clause in the U.S. Constitution protects a person who has been acquitted from having to "run the gantlet" of prosecution a second time. Hill "has not been acquitted of anything, and he is not being forced to run any [gantlet]," says a motion filed in Trumbull County Common Pleas Court on Friday by Prosecutor Dennis Watkins and LuWayne Annos, assistant prosecutor.
A week ago, Hill's public defender filed a motion in the post-conviction case of Hill, of Warren, this time requesting resentencing to avoid Hill's being subject to double jeopardy.
Hill was sentenced to death in 1986, convicted in common pleas court of the 1985 murder of Raymond Fife, 12, who was raped and tortured. A co-defendant, Timothy Combs, was a juvenile then and is serving consecutive life terms in prison. Hill is at Mansfield Correctional Institution.
Case cited
The motion filed by the Ohio Public Defender's Office said a federal ruling in a case called Bies vs. Bagley from Nov. 23 has an impact on the case against Hill. The motion says Hill is being subjected to double jeopardy because his defense "long ago proved" he is mentally retarded and that the state is barred from any attempt to re-litigate that question.
The prosecutors, though, say the public defender's motion contains a misstatement as to whether Hill had ever previously been found to be mentally retarded.
"The actual finding by the three-judge panel which convicted and sentenced [Hill] was that he exhibited 'low intelligence' and 'impaired judgment,' not that he was mentally retarded," the state's filing says. No valid and final judgment has ever been made as to whether Hill was mentally retarded at the time of the crime, it says.
Thomas P. Curran, a visiting judge from Cuyahoga County hearing the Hill case, is expected to rule this month on whether Hill's death sentence should be revoked because of a 2002 Supreme Court ruling that execution of the retarded is cruel and unusual punishment.
Hill's legal team says Judge Curran should adopt the reasoning set forth by Magistrate Judge Michael R. Merz in the Southern District Western Division Court in Dayton in a case of another murder defendant. The ruling there was that the defendant's death sentence should be removed and he should be resentenced.
Prosecutor's response
The prosecutor's office says the evidence cited by the public defender in its filing is a "magistrate's recommendation to District Judge Susan J. Dlott," not the ruling of a judge.
"That recommendation has not been adopted at this writing," the prosecutor's office says, adding that the public defender does not cite any opinion "emanating from a real judge. ... "
The public defender's motion said the Bies case is "equal in all central respects" to Hill's case. "Judge Merz blocked further proceedings" to determine whether that defendant should be executed because "like here, the state trial court errantly overruled Bies' double jeopardy argument."
Judge Curran rejected double jeopardy arguments in an entry from March 19, 2004.
The public defender says Trumbull County Common Pleas Court "should correct its own error" and determine that Hill is a mentally retarded person who is entitled to be excluded from the death penalty.
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