Recent Clemency Grants in Ohio Highlight Importance of Capital Defense Counsel

The Sixth Amendment provides that every person charged with a criminal offense is entitled to the effective assistance of counsel. In capital cases, where the defendant’s life is at stake, this right is of the utmost importance. Unfortunately, however, hundreds of overturned capital convictions and sentences demonstrate that counsel failures remain prevalent even in these most consequential cases. Clemency can be one way to remedy these failures, especially when the court system has failed to do so. Ohio Governor John Kasich has shown a recognition of the importance of constitutionally adequate representation through recent executive action stopping the scheduled executions of Ronald Post, Raymond Tibbetts, and Cleveland Jackson.

In 2012, Governor Kasich granted clemency to Ronald Post. In a statement about the decision to commute Mr. Post’s sentence, Governor Kasich said that "regardless of the heinous nature of their crime, a criminal defendant is entitled to an effective defense, especially in a death penalty case." At Mr. Post’s trial, defense counsel clashed over how to proceed with the case and eventually convinced Mr. Post to plead “no contest” to the death penalty charges, even though his role in the killing was limited to driving two other individuals to the scene of what he thought was a robbery. Mr. Post claimed to be unaware that anyone had even been killed until reading about it later in a newspaper. As eventually noted by the Ohio Parole Board (“Board”), a plea of no contest is extremely rare in death penalty cases. At the time, Mr. Post was the only prisoner to be sentenced to death in Ohio after a plea of “no contest.” As a result of this plea, Mr. Post was never given the opportunity to present mitigating evidence to a jury to allow him to plead for leniency from a death sentence or demonstrate his relatively limited culpability in the crime. Although Mr. Post sought to reopen his case during federal appeals, he was denied discovery, effectively limiting the ability of his attorneys to bring any new claims. The Sixth Circuit subsequently dismissed his appeal, leaving clemency the sole avenue for relief from his sentence. Upon reviewing Mr. Post’s case, the Ohio Parole Board stated that "a capital case necessitates a level of attentio and responsible tactical decision making commensurate to its gravity," and concluded that “the representation afforded Post throughout his prosecution and beyond did not rise to the level that society has come to expect in death penalty cases.” The Board recommended that Mr. Post be granted a commutation, and Governor Kasich agreed, ultimately commuting his sentence to life without parole. Mr. Post died in prison in 2013, seven months after having been granted clemency.

On July 20, 2018, Governor Kasich granted clemency in two additional cases—one commutation and one reprieve—both because of issues related to defense counsel. First, he commuted the death sentence of Raymond Tibbetts to life without parole. In reaching this decision, Governor Kasich was particularly moved by a letter he received from Ross Geiger, one of the jurors that had voted to sentence Mr. Tibbetts to death. In the letter, the juror expressed concern about the representation Mr. Tibbets had received during the penalty phase of trial. Instead of coherently presenting evidence regarding the child abuse and trauma that plagued Mr. Tibbetts’s childhood, during deliberations counsel merely gave the jury a box of files to sift through containing some of this information. As a result, the jury did not understand the extent of the physical abuse that Mr. Tibbetts had suffered at the hands of his foster parents; or that his biological mother took some of his siblings out of foster care but refused to take back Mr. Tibbetts. Additionally, the paltry evidence that counsel did present was undermined by the prosecutor, who claimed that Mr. Tibbetts’s siblings had endured similar childhoods to his, and "turned out fine." During clemency proceedings, attorneys for Mr. Tibbetts were able to show that this was untrue. A proper investigation by trial counsel would have revealed substantial evidence indicating that his siblings all suffered from various forms of mental illness and substance addiction, largely as a result of their traumatic upbringing. Mr. Geiger wrote, "If I had known all the facts, if the prosecutors had been honest and forthcoming about the horrors [Tibbetts] and his siblings experienced in the foster care system…I would have voted for life without parole over death." Mr. Geiger’s letter also revealed that counsel’s decision to call only a psychiatrist to testify in favor of a life sentence left the jury with the impression that no one other than a paid expert was willing to testify on Mr. Tibbetts’ behalf. In reality, Mr. Tibbetts’s sister, father, and Alcoholics Anonymous sponsor were all available to testify at trial and willing to beg the jury for leniency. The Ohio Parole Board twice made a non-binding recommendation against clemency, but Governor Kasich disagreed, finding that counsel had failed to adequately represent Mr. Tibbetts at the punishment phase of his trial. He said that counsel's failure, "coupled with an inaccurate description of Tibbett's childhood by the prosecution, essentially prevented the jury from making an informed decision about whether Tibbetts deserved the death penalty." Accordingly, Governor Kasich commuted Mr. Tibbetts’s death sentence to life without parole.

The same day he commuted Mr. Tibbetts’s sentence, Governor Kasich also granted death-row prisoner Cleveland Jackson a reprieve to "allow his newly appointed legal counsel sufficient time to review the case and properly prepare for his clemency hearing before the Parole Board." The need for more time arose after Mr. Jackson’s previous appointed counsel withdrew from the case with an execution date already set and the deadline for filing a clemency petition approaching without having done any work to prepare his petition. Mr. Jackson’s new execution date is set for May 29, 2019, allowing his newly appointed attorneys significantly more time to investigate his case and present compelling arguments for clemency to the Board.

These grants of clemency in Ohio demonstrate several ways in which errors by defense counsel can undermine the fairness of a capital case and also highlight the power of clemency as a fail-safe to prevent unjust executions.