Experts: Cutts verdicts unusual

The jury convicted Cutts of murder in the death of his girlfriend and aggravated murder in the death of her unborn fetus.

COLUMBUS (AP) — The trial of a former police officer accused of killing his pregnant lover ended with jurors taking an unusual path to finding him guilty, some legal experts said.

After deliberations spanning four days, the jury in Canton convicted Bobby Cutts Jr. on Friday of murdering Jessie Davis. Jurors convicted him 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 scheduled 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’s office.

Ohio is one 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, laws vary state to state.

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.

Judge Brown issued a gag order in the case, 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. I don’t know how the courts will figure this one out,” said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C.

Death penalty sentences do not come out of Stark County often, a review of court records by The Associated Press last September showed.

Of the 44 death penalty indictments brought by Stark County prosecutors in the past 25 years, only five resulted in death sentences, according to the analysis. Twenty-five of those indictments ended in plea bargains, and Stark County juries and three-judge panels spared the 14 other offenders.