Whether defense counsel has discretion to present mitigating evidence in a capital case

QUESTIONS PRESENTED Counsel and capital defendants frequently clash over whether and what mitigating evidence to present in support of a sentence less than death. In Ohio, this has caused counsel to start submitting mitigating evidence under seal, not to be considered by the trial court. On a capital defendant’s direct review, the Ohio Supreme Court is mandated by statute to conduct an independent sentence review by considering “all the facts and other evidence disclosed in the record.” Ohio Rev. Code Ann. § 2929,05(A). The questions presented are: 1. When a capital defendant does not completely waive mitigation, does the presentation of mitigating evidence become a strategic choice left to defense counsel? 2. Does the Ohio Supreme Court, when reviewing a capital sentence under Ohio Rev. Code Ann. § 2929.05(A), violate a defendant’s Eighth Amendment rights under Eddings v. Oklahoma, 455 U.S. 104 (1982) when it refuses to consider mitigating evidence that was proffered and submitted on appeal but not presented as mitigating evidence at trial? i