Mimesis Law
20 September 2020

Four Steps To Death, Unless It’s Too Much Effort

Apr. 29, 2016 (Mimesis Law) — A capital prosecution in Ohio works roughly this way.

The grand jury charges aggravated murder (Revised Code Section 2903.01) and one or more death specifications (R.C. 2929.04(A)).

  • If the jury finds the person guilty of aggravated murder and at least one death specification, there’s a second part of the trial where the prosecutor tries to convince the jury that the specifications outweigh beyond a reasonable doubt any mitigating factors (R.C. 2929.04(B)).
  • If the jury finds that the aggravating stuff outweighs the mitigating, the jury says “kill.”
  • Then the judge makes her own, independent determination of whether aggravation outweighs mitigation. If the judge agrees with the jury that aggravation outweighs mitigation, the judge sentences the defendant to death and issues a written opinion explaining why the aggravating circumstances outweigh any mitigation. If not, the judge imposes a life sentence.

If there’s a death sentence, then the Ohio Supreme Court steps in. The seven justices are required to review every death sentence. Whatever else they review in the case, they must make their own independent determination (“independent reweighing,” they call it) of whether the aggravating circumstance outweighs any mitigating factors beyond a reasonable doubt. If at least four agree, they affirm the death sentence.

So there are four determinations, each supposedly independent of the others.

  1. Grand jury
  2. Trial jury
  3. Trial judge
  4. Supreme Court of Ohio

If any one doesn’t support death, the process ends.*

The Supreme Court will review other issues, too, including whether the trial judge properly did his weighing and issued a proper opinion.

Which brings me to Nathaniel Jackson.

Jackson and Donna Roberts were romantically involved in 2001 while Roberts was living with her ex-husband, Robert Fingerhut. During that year, Jackson went to prison. While there, he and Roberts plotted to kill Fingerhut for $550,000 in insurance money. Fingerhut was shot to death in December 2001, and Roberts and Jackson were each convicted for aggravated murder and received death sentences.

That’s from the press office of the Ohio Supreme Court describing the crime that led to the oral argument the other morning in State of Ohio v. Nathaniel Jackson.   The procedural history of the case is more complicated.  In 2006, the Supreme Court affirmed Jackson’s sentence.  That same year it sent Roberts back to be resentenced because it turned out that the trial judge didn’t do his independent weighing, er, independently.  Or maybe he did.  But the prosecutor helped him write his opinion explaining how and why he weighed as he did.  That’s a no no.

In 2010, when it turned out that the judge had done the same thing when he sentenced Jackson to die, Jackson, too, was ordered to be resentenced. Roberts and Jackson were both again sentenced to death.

In 2013 the Supreme Court vacated Roberts’ new death sentence and sent her back for the judge to take a third shot at doing it right.  (Actually, not the same judge – that one has died.)  Tuesday morning, the court heard oral argument in Jackson’s appeal from his new death sentence.  From the way the argument went, I’d guess that he won’t be getting a third chance.

Anyhow, what got me going on this is the set of questions from Justice Judi French asks of Randall Porter (Jackson’s lawyer) beginning around 17 1/2 minutes into the argument. She asks about the fact that the trial judge’s opinion doesn’t address Jackson’s allocution (where he gets to speak directly to the judge and say what he wants that’s relevant to the sentencing).

You say we need to send this back so that Jackson’s allocution can be considered, right? She asks.  Yes, Porter says, that’s right.  But why, she asks, why can’t our independent reweighing cure that?

Porter offers a technical, legal sort of answer having to do with precedent from the second Donna Roberts case. What he doesn’t say, is that when the court says it can cure a fuck-up by its independent reweighing (and it routinely says that when it finds that the trial judge weighed things improperly in its decision to impose a death sentence), it’s violating the design of our capital punishment system.

Remember. Four steps:  Grand jury, trial jury, trial judge, Supreme Court.  A failure to prove to the independent satisfaction of any of those bodies that aggravation outweighs mitigation takes death off the table.  But if the trial judge weighed it wrong (if the judge considered the nature and circumstances of the offense as aggravating, for instance**), then that step was never satisfied.  Either death should come off the table or the case should go back for the judge to weigh properly and then decide.

When the court says that its independent weighing can cure any error, what it’s really saying is that the trial judge can improperly sentence someone to death, but if a majority of the Supreme Court would impose a death sentence, it doesn’t matter. Whatever they decide in Jackson’s case, they perform that slight of hand regularly.

Of course, they’re supreme, those seven on the Supreme Court. But still.

Close enough for government work. Off with his head!


*If the person is convicted of aggravated murder but not sentenced to be executed, there are various sentencing options, including death in prison (life without the possibility of parole).

**It is a peculiarity of Ohio law that the nature and circumstances of the offense can weigh against a death sentence but not in favor of one, can be mitigating, but cannot be treated as aggravating.  So said the Ohio Supreme Court in, for instance, State v. Wogenstahl quoting R.C. 2929.04(B) which says that the jury “shall consider, and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense.”

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  • Chris
    20 April 2016 at 10:02 am - Reply

    The big takeaway: the primary error here is the trial judge thought the prosecutor was his law clerk.