COLUMBUS - The Ohio Supreme Court has once again overturned the death sentence of the state's only female death row prisoner.
Justices vacated the death sentence of Donna Roberts, formerly of Howland, for the second time Tuesday and returned the case to the trial court for a second resentencing. The Supreme Court held that the trial court did not consider potentially mitigating information that Roberts, 69, provided at her resentencing hearing, which was held by the trial court six years ago following the Supreme Court's first ruling in this case.
Former Common Pleas Judge John M. Stuard presided over the trial and the resentencing. The case has now been turned over to Judge Ronald Rice since Stuard retired and has since died.
Chief Justice Maureen O'Connor wrote that the trial court must consider the entire record, including Roberts' allocution made during the resentencing hearing in the remanded case, when determining whether the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. The trial court must also issue a sentencing opinion reflecting its compliance with these instructions, O'Connor wrote, according to the court's news service.
O'Connor pointed out that Roberts' allocution in the remanded case was "the only relevant matter that was specifically placed before the trial court as mitigation" because Roberts chose not to present any evidence during the original trial's mitigation phase. Her statements included information that was relevant to mitigation, O'Connor wrote, including comments that she grew up in a very abusive household, was raped by a cousin, had been injured and hospitalized after three serious car accidents, suffered from depression, attempted suicide and experienced hallucinations.
The case arose from the murder of Robert Fingerhut, who operated Greyhound bus terminals in Warren and Youngstown. Roberts lived with Fingerhut, who was her former husband. Fingerhut owned two life insurance policies, with a total benefit of $550,000 and named Roberts as the sole beneficiary.
At some point while living in an Avalon Drive home with Fingerhut, Roberts had an affair with Nathaniel Jackson. In 2001, Jackson was sent to prison. During his imprisonment, Roberts and Jackson talked by phone and exchanged letters. Those conversations and their correspondence, monitored by prison authorities, revealed that they planned to murder Fingerhut.
In December 2001, Jackson was released from prison. Roberts picked him up from prison, and spent that night and most of the next few days with him. Two days after Jackson's release, Fingerhut, 57, was shot to death at home. Jackson was convicted of murdering Fingerhut and was sentenced to death.
Roberts was found guilty of aggravated murder with death specifications, and aggravated burglary and aggravated robbery with firearm specifications. At her mitigation hearing, Roberts made an unsworn statement to the jury, but she wouldn't let her attorneys present any mitigating evidence. The jury recommended a death sentence, and the trial court issued that sentence.
The Supreme Court heard Robberts' mandatory death penalty appeal. In its first decision in the case in 2006, the Supreme Court upheld her aggravated murder conviction and the death specification. But the court determined that the trial judge had engaged in improper ex parte communications with the prosecutor by letting the prosecutor help draft the sentencing opinion. The Supreme Court vacated Roberts's death sentence and returned the case to the trial court to resentence Roberts, who is confined to the Southern Correctional Institution for Women at Marysville, this time without the participation of the prosecutor.
In its 2006 opinion, the Supreme Court directed the trial court "to afford Roberts her right to allocute," to "personally review and evaluate the evidence and weigh the aggravating circumstances against any relevant mitigating evidence," and to "determine anew the appropriateness of the death penalty." "Allocution" is a convicted defendant's unsworn oral statement to the court before sentencing to try to lessen his or her sentence. The court also instructed the trial court to "personally prepare an entirely new penalty opinion and conduct whatever other proceedings are required by law and consistent with this opinion."
After hearing statements from Roberts in the remanded case, the trial court resentenced her to death. In doing so, the trial court failed to mention any of the information provided by Roberts during allocution. Roberts again exercised her right to be heard by the Supreme Court on direct appeal.
O'Connor stated that the trial court did not take Roberts' allocution into account in its resentencing, as evidenced by the trial court's lack of discussion of her statements in its opinion. The Supreme Court has in previous cases rejected claims that a trial court's failure to mention particular mitigating factors in a sentencing opinion obliges a reviewing court to infer that the trial court failed to consider those factors, O'Connor explained. However, she wrote, "we conclude that the particular circumstances of this case warrant the inference that the trial judge did, in fact, fail to consider Roberts's allocution in sentencing her to death."
O'Connor concluded: "We find that the sentencing opinion is so inadequate as to severely handicap our ability to exercise our power of independent review. Accordingly, we must vacate Roberts's sentence of death and remand this case for resentencing."
In his dissent, Justice Terrence O'Donnell pointed out that there is no constitutional right to allocution and distinguished the statutory right to make an unsworn statement during the penalty phase of trial from the right to make an allocution statement before imposition of sentence.
"In my view, no reasonable inference may be drawn from the failure of the trial court to specifically incorporate the content of the allocution made by Roberts in its sentencing opinion," O'Donnell wrote. "Obviously, because we remanded for that right to be accorded before sentencing, the trial court listened to Roberts and was aware of what she presented."