COLUMUBS - The Lucas County prosecutor's office yesterday asked the Ohio Supreme Court to reinstate the life sentence of Robert Harwell, who was spared the death penalty because he was 16 when he murdered a 62-year-old widow.
Harwell pleaded no contest to aggravated murder, rape, and aggravated burglary. He raped Joann Harris on Feb. 3, 2000, in her Navarre Avenue home in Toledo and then shot her under each eye.
A knife-wielding Harwell lashed out at Mrs. Harris after she had stepped out of her home to investigate a dispute he was having with her neighbor. He used her own gun to kill her.
The Sixth District Court of Appeals, by a 2-1 vote, overturned the sentence of life without parole last year, determining that the three-judge county common pleas court panel failed to follow special protections afforded death-penalty defendants at sentencing.
The case raises the question of whether a juvenile, facing an aggravated murder charge that could lead to the death penalty if he were an adult, should be treated the same as any capital murder defendant in every other respect. Ohio law bars executing anyone under 18 even if the defendant is tried as an adult, the case with Harwell.
The Ohio Attorney General's office has suggested this could reopen as many as 1,000 cases involving juveniles.
Jeffrey Gamso, Harwell's attorney, said there are only four current cases that fit this description. “We're not talking about opening the floodgates,” he said.
Justice Evelyn Lundberg Stratton noted that a sentence of life without parole is available only in capital murder cases. “If you want to take advantage of a statute with an enhanced penalty, you take everything that comes with it, regardless of the death specs,” she said.
The lower-court judges could have opted for a sentence of life with the possibility of parole but imposed the harsher sentence after hearing recommendations for the harsher sentence from two members of the victim's family.
In death penalty cases, judges hear from a single spokesman representing the victim's family.
The appeals court has found that the trial court panel also did not employ the same death penalty procedures in weighing evidence favoring and opposing imposition of the harsher life-without-parole sentence.
“Why should the protections apply ... when as a matter of law the defendant cannot be executed?” asked Assistant Prosecuting Attorney Eric Baum.
“These protections protect them from nothing,” said Deputy State Solicitor Chris Stock.
Harwell is in Southern Ohio Correctional Institution in Lucasville. If the Supreme Court refuses to reinstate his sentence, he would return to Lucas County for another sentencing hearing and still could possibly receive life without parole.
First Published October 22, 2003, 12:02 p.m.
