A Trumbull County trial judge’s error prompted the Ohio Supreme Court to vacate a man’s death sentence and order him to be resentenced. The trial judge again sentenced the man to death and while the Supreme Court still faulted the trial judge’s sentencing process, today it affirmed the death penalty.

The Court voted 6-1 to affirm the conviction of Nathaniel Jackson for the 2001 murder of Robert Fingerhut and the death penalty imposed by the Trumbull County Common Pleas Court. The Eleventh District Court of Appeals vacated Jackson’s initial death sentence when it found an assistant prosecutor improperly assisted the trial judge in preparing the sentencing opinion.

Writing for the majority, Justice Paul E. Pfeifer concluded that while the trial judge failed to properly consider Jackson’s statement to the court before sentencing, the error was harmless and was corrected by the Court’s independent evaluation of the sentence.

In a dissenting opinion, Justice Judith Ann Lanzinger wrote that because the sentencing opinion was prepared beforehand, the court did not take Jackson’s words into account before re-sentencing Jackson. She concluded that he is entitled, just as his co-defendant Donna Roberts was, to receive a sentencing hearing where his statements are considered before sentence is imposed.

Jackson Conspired From Prison to Murder Fingerhut
Donna Roberts lived with Fingerhut in Howland Township, and Fingerhut had two life insurance policies worth a total of $550,000 in which Roberts was named the sole beneficiary. Roberts began an affair with Jackson, which continued while Jackson was confined in the Lorain Correctional Institution.

While in prison, Jackson and Roberts exchanged numerous letters and spoke by phone, with the prison authorities recording many of the conversations. Passages from the letters and calls indicated the two plotted to murder Fingerhut, and at Jackson’s request, Roberts purchased a ski mask and pair of gloves for Jackson to use during the murder. Roberts picked up Jackson from Lorain Correctional when he was released and two days later, Fingerhut was shot to death in his home.

Police searched the house and found 145 handwritten letters and cards that Jackson sent to Roberts and when they recovered Fingerhut’s stolen car in Youngstown they found a bag with Jackson’s name on it with 139 letters Roberts had sent to Jackson. When Jackson was arrested, he claimed he shot Fingerhut in self-defense.

Jackson was indicted on two counts of aggravated murder with both carrying felony-murder death-penalty specifications, and separate counts of aggravated burglary and aggravated robbery. In 2002, a jury found Jackson guilty of all charges, and at the conclusion of the penalty stage, recommended death. The late Judge John Stuard, who presided over Jackson’s trial, imposed the death sentence.

Roberts Also Convicted But Death Sentence Overturned
Judge Stuard also presided over Roberts’ capital murder trial and she was found guilty of aggravated murder and other offenses, and was sentenced to death. In 2006, the Ohio Supreme Court affirmed Roberts’ convictions, but vacated her death sentence and remanded the case to the trial court because the judge had enlisted the assistant county prosecutor who tried the case in drafting the sentencing opinion.

The Court instructed the trial judge to afford Roberts her right to allocute, which gives her a chance to make a statement to the court before she is sentenced. The trial court was directed to personally review and evaluate the evidence, weigh the aggravating circumstances against any mitigating evidence, and determine the appropriateness of the death penalty as required by R.C. 2929.03.

Before the Court heard Roberts’ appeal, it heard Jackson’s appeal of his original conviction. No allegation of the prosecutor’s participation in the sentencing opinion was raised. The Supreme Court affirmed Jackson’s conviction and death sentence without addressing any issues regarding the prosecutor’s assistance in the sentencing opinion. Following Roberts’ appeal, Jackson filed for a new sentencing hearing and sought to disqualify Judge Stuard from acting on any further post-conviction proceedings.

Judge Stuard acknowledged that he communicated with the prosecuting attorney’s office in both Roberts’ and Jackson’s cases before sentencing them, but described the actions as administrative and not substantive. He wrote that he had independently weighed the evidence when originally sentencing the two and was prepared to do so again and should not be disqualified. Over repeated objections by Jackson to disqualify Judge Stuard, the judge was allowed to remain on the case. Judge Stuard denied Jackson’s request for a new sentencing hearing, but the Eleventh District ruled the assistance of the prosecutor’s office was improper and ordered a new resentencing for Jackson. The Eleventh District found his case followed the same pattern as Roberts and that Jackson was entitled to the same relief as Roberts.

Judge Resentences Roberts and Jackson
Judge Stuard resentenced Roberts to death and she appealed to the Supreme Court, which in 2013 found that Judge Stuard failed to consider her allocution, and the sentencing opinion was so inadequate that it handicapped the Supreme Court’s ability to conduct an independent review. The Court remanded her second sentence, and in 2014 another trial judge resentenced Roberts to death. Her appeal of that sentence is still pending before the Court.

Jackson raised 12 objections to his sentence including that Judge Stuard was biased against him.

Justice Pfeifer wrote that while Judge Stuard may have acted improperly, Jackson failed to prove that the judge harbored a hostile feeling or a spirit of ill will against Jackson or any of his attorneys that would constitute judicial bias.

Jackson Argues Mitigation Evidence Discounted
Jackson made several arguments regarding the trial court’s denial of mitigating evidence, including refusal to consider three volumes of information that included Ohio death penalty statistics and Jackson’s school and criminal records. Justice Pfeifer noted that while a defendant has the constitutional right to provide full, unlimited mitigating evidence at the original sentencing hearing, there is no similar right at a resentencing hearing.

Justice Pfeifer wrote that Jackson stated at his allocution that he had not been in any trouble since being placed on death row in 2007, and he was taking classes and adjusting. He stated: “I feel that doing my time, I have learned to find myself and I know who I am right now, and … I wouldn’t like to be placed back on death row.”

The trial court filed the sentencing opinion on the same afternoon the resentencing hearing concluded, and the judge stated in the opinion that the court considered all the relevant evidence raised, but it did not mention Jackson’s allocution.

Justice Pfeifer noted the Court instructed the trial court to provide Jackson the same resentencing process as Roberts, which included considering her allocution. The Court concluded the trial court did not consider Jackson’s allocution in the resentencing, so again it was improper. But he noted that through the Supreme Court’s independent review of the evidence, it could rectify the trial court’s error.

Justice Pfeifer also wrote that Roberts at her resentencing presented extensive mitigation evidence that was not presented at her original sentencing, while Jackson presented a great deal of information at his first trial and added very little during his resentencing.

Justice Pfeifer observed that while Jackson presented evidence of good behavior while in prison, he also was in prison when he and Roberts planned Fingerhut’s murder.

“The letters and phone conversations between Jackson and Roberts show that they planned Fingerhut’s murder over the course of several months. After he was released from prison, Jackson murdered Fingerhut during a burglary and stole his car. Jackson’s mitigating evidence has little significance in comparison,” Justice Pfeifer concluded.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy and Judith L. French joined the opinion. Tenth District Court of Appeals Judge William A. Klatt, sitting on assignment for Justice William M. O’Neill, also concurred with Justice Pfeifer’s opinion.

Justice Terrence O’Donnell concurred in part and concurred in judgment in part, agreeing that Jackson’s convictions and death sentence should be affirmed but rejecting the conclusion that the trial court erred in failing to mention Jackson’s allocution in its sentencing opinion. Relying on the court’s precedent holding that it is not reversible error for the trial court to fail to incorporate and discuss all of the mitigating factors in its opinion, Justice O’Donnell explained that the record reflected that the failure to mention Jackson’s allocution in the sentencing opinion is not error, and thus there was no reason to consider whether error could be cured through the court’s independent sentence evaluation.

Dissent Disagrees With Harmless Error
Justice Lanzinger in her dissent wrote that the trial court also did not discuss the allocution of Jackson’s co-defendant before she was sentenced, and that the court held this was a violation of Roberts’ Eighth Amendment rights. Justice Lanzinger concluded that the same situation occurred in Jackson’s case and rather than mere oversight it was reversible error.

Concluding the trial court failed to comply with the instructions to conduct Jackson’s resentencing with “the strict level of care that comports with the unique status of a capital case,” she would grant Jackson a new resentencing hearing that followed the instructions previously handed down in the earlier decisions in Roberts’ and Jackson’s cases.

2012-1644. State v. Jackson, Slip Opinion No. 2016-Ohio-5488.

View oral argument video of this case.

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