The section strives to uphold lawfully imposed death sentences, assists county prosecutors at the trial level in death penalty cases when requested, and defends the state in federal civil rights litigation brought by inmates.
Could you tell us more about your section?
The section is made up of the Capital Crimes Unit, the Habeas Unit, and the Corrections Unit.
Our Capital Crimes Unit works to uphold lawful death sentences and the accompanying aggravated murder conviction in federal habeas proceedings. This may include many years of litigation in the federal courts defending against litigation brought by inmates who raise constitutional challenges to their convictions or death sentences, which have previously been upheld by the state courts. We are involved in major class-action lawsuits brought by inmates on Death Row who are alleging that Ohio’s method of lethal injection is unconstitutional.
The Habeas Unit works to uphold criminal convictions and sentences which were lawfully imposed by the state courts in non-death penalty cases. This is generally the last court review available to convicted felons to challenge convictions and sentences that have been upheld by the state courts.
These legal challenges are initiated by habeas actions inmates file against the warden of the prison in which they are confined. Since the warden is a state employee, these cases are the responsibility of the AGO, even though the underlying conviction was obtained by local prosecutors. There are 300- 400 of these actions filed each year, with most being filed in federal court. In each case, the habeas unit must obtain and review the entire court record in order to properly respond to the inmate’s claims. The unit routinely handles the numerous 6
th Circuit appeals on habeas cases, generally without assistance from the Appeals Section.
The Corrections Unit represents the Ohio Department of Rehabilitation and Correction and Department of Youth Services and their employees in civil suits brought by inmates, who challenge their conditions of confinement.
These include claims alleging improper use of force, failure to protect the inmate, inadequate medical care, interference with religious practices, or other alleged violations of constitutional rights. These include both individual suits seeking monetary damages, as well as class action suits. Most of the suits are Section 1983 cases filed in federal court. Some of the actions are brought in state court. The unit has also handled multiple challenges to the decision making authority of the Ohio Parole Board, and additionally works with local prosecutors in defending wrongful imprisonment claims brought under Ohio Revised Code 2743.48.
What brought you to the Attorney General’s Office?
I retired from the municipal court judgeship in Madison County on Dec. 31, 2010. From January 2011 until September, I was sitting by assignment as a retired judge. In that role, the Ohio Supreme Court can send you to cover dockets when a judge is away, there is a conflict of interest, or if the judge needs help with a caseload. But there wasn’t enough activity to suit me. I had an opportunity to join the Attorney General’s staff full time, so I took it.
Did you start out as a section chief?
No, I started out as a line attorney for corrections in September 2011, and then sometime around March 2012, I was promoted to unit coordinator for Special Prosecutions. A year later, I was promoted to section chief of Criminal Justice.
You were an Army veteran of the Vietnam War. How has that helped you in your career?
Leadership, period. It develops your organizational skills, it emphasizes time-management skills. It teaches you how to motivate people in situations that they are not happy about, such as being in combat. It was a huge dose of responsibility. I was what they called a platoon leader, or a second lieutenant, so I was responsible for the lives of 30 people.
Where were you during the war?
I was in an area called III Corps, which is around Saigon. I was there a little more than seven months when I was wounded and shipped back home.
Can you tell us about that?
It was wrong place, wrong time. It’s a hazard of the job you were assigned to do. On January 31, 1970, we were going through our standard routine of looking for the bad guys in the jungle of South Vietnam. As luck would have it, my platoon ran into a very large force of North Vietnamese regulars and when the contact was over, many of us were wounded.
They shipped me back to the States to recover from my wounds. I stayed in the hospital until they reached the conclusion that I had stabilized, then they retired me medically. That occurred in September of 1970.
During your time as section chief have you had any cases of which you are particularly proud?
The biggest and most recent case was the successful conclusion of the (2004) Department of Youth Services class action lawsuits. … There was one by the federal government and one by several of the youth inmates. Those cases had been going on for years, and we managed to get them settled last year. That was a big one for the office.
Do you, yourself, ever go to court?
If it’s a big enough case, I involve myself with it. I sit in on the negotiations, on the trial prep, and on the actual hearings so that I can be intimately involved in what happens. As part of my background, I spent 18 years as an elected prosecutor and another 17 as an elected judge, so I’m very familiar with the courtroom from both sides of the bench. I enjoy seeing first-hand how my folks are doing.
How has your past as a judge and a prosecutor helped you in your current role?
It gives me the practical courtroom experience so I can advise the attorneys who are looking at an issue through the eyes of an appellate attorney, and not as a trial attorney. They may sit there and say, “Why did this attorney do this?” and I can at least explain to them, “Here’s one of the reasons they may have done this at the trial level.” The second thing that helps is that as my attorneys have hearings coming up, I can go with them and make suggestions about how to approach things so as to get the most benefit from their time before the judge.
How do you assist county prosecutors?
One of my attorneys may sit in on a trial, and, if there’s an issue that comes up during the trial, they’ll research it and brief it, but more often we help the prosecutors in appellate court, after the trial when defense counsel is appealing the verdict. Most medium- to small-county prosecutors don’t have the luxury of having appellate experience on staff. So we can help them that way. There are occasions when they request that our attorneys sit in with them during a hearing or at trial.
It helps the prosecutor to plan their strategy if they have somebody who’s an expert in appellate law and can tell them, “Here’s what the 6
th Circuit looks for in these cases,” because, ultimately, many State criminal cases end up in federal court upon review in habeas corpus.
When do they reach out, when they are planning to seek the death penalty?
If they are planning to seek the death penalty, chances are, they may already have our Special Prosecutions people on board. In addition to that, there may be questions that arise as they prepare for trial, then they’ll call my people at the appellate level and they will help them strategize to avoid problems in the trial.
What challenges does your section face today?
Day to day, the work our attorneys do can get tedious and stressful. I want to make sure to keep my people engaged and sharp so that they don’t get complacent. Occasionally, I will suggest that one of them take a day or two and sit in on a jury trial. We also farm out people to Special Prosecutions to prepare motions or briefs. I want to make sure our attorneys get an infusion into a criminal case, whereas their typical work involves federal civil cases that are the result of criminal cases. If they can see how important their work is from an appellate standpoint by going to a criminal trial, where these attorneys are actually doing things that turn into issues that we later see, it not only helps the prosecutor, it shows them the value of what my people do in the appellate world.
The Picken File
Previous jobs: Madison County Municipal Court judge (1994-2010), Madison County prosecutor (1974-1992), second lieutenant in the U.S. Army (1968-1970)
Education: Bachelor of Arts degree in history, Allegheny College; Juris Doctorate, Case Western Reserve University
Family: Wife, Sharon A. Picken; children, Brian, Laura, and Todd
Hobbies: Reading, snow skiing, horseback riding, and traveling
Favorite quote: Carpe Diem, quam minimum credula postero. — Seize the day, put very little trust in the future.
Contact: 614-995-3267; 150 E. Gay St., Columbus, OH 43215; Robert.Picken@OhioAttorneyGeneral.gov