"This case is the epitome of ... an extreme judicial malfunction." This the Sixth Circuit observes on its way to granting a writ of habeas corpus in Jackson v. Cool. The Sixth Circuit summarized the proceedings as follows:
Petitioner Nathaniel Jackson was convicted of a capital offense and sentenced to death. But Jackson’s sentencing proceeding was blatantly unconstitutional at its core due to the trialcourt judge’s bias and misconduct, as well as his exclusion at sentencing of relevant mitigating evidence. The prejudicial judicial bias and misconduct included numerous ex parte communications between the judge and prosecutor regarding substantive sentencing issues and the ghost writing by the prosecutor of the judge’s opinion sentencing Jackson to death. In state court, when this unethical conduct came to light, the Ohio appellate courts publicly reprimanded the trial judge and ordered him to conduct new sentencing proceedings: the judge was to
“personally review and evaluate the appropriateness of the death penalty” and “prepare an entirely new sentencing entry.”
On remand, Jackson moved to present three additional volumes of mitigating evidence. The trial judge denied the motion, and he orally resentenced Jackson based on the stale, ten-yearold mitigation record. A few hours after the resentencing hearing concluded, the judge issued a second opinion sentencing Jackson to death that was functionally identical to the original, corrupted opinion and contrary to the Ohio Court of Appeals’ specific instructions on remand. Nevertheless, the Ohio appellate courts affirmed Jackson’s sentence.
That mild description is a benign near-whitewash of the ugly breakdown of the Ohio state court system including its state Supreme Court.
A bad crime started the case. Nathaniel Jackson and Donna Roberts conspired to kill Roberts's ex-husband. They left a trail of evidence and were quickly apprehended. They were separately indicted and tried on capital murder charges. The juries in both trials recommended the death penalty and Trumbull County Court of Common Pleas Judge John M. Stuard followed those recommendations and imposed the death penalty for both. And here the judical malfunction starts.
Roberts' death sentence was vacated by the Ohio Supreme Court "due to Judge Stuard's ex parte use of the prosecutor in preparing Roberts's sentencing opinion." "Judge Stuard conceded that he had engaged in ex parte communications with the prosecution in drafting the sentencing opinion -- apparently, Judge Stuard had given notes to the prosecutor outlining the sentence to be imposed with supporting reasons and tasked the prosecutor with drafting the opinion and making revisions."
Jackson learned of the irregularities in Roberts's case and himself moved for new sentencing proceedings and Judge Stuard's disqualification. Ohio Supreme Court Chief Justice Thomas Moyer refused to disqualify Judge Stuard, asserting, in what is an instance of wilfull blindness, "[t]here is no evidence in the record before me, ...., to suggest that the judge has shown any hostility or bias toward either party, and there is no indication that he is unable or unwilling to resolve any remaining disputed matters with an open state of mind." In re Disqualification of Stuard, 863 N.E.2d 636 (Ohio 2006).
Jackson's motion for a new sentencing hearing remained pending before Judge Stuard for over three years. Notwithstanding the decision by its chief justice, Thomas Moyer, not to disqualify Judge Stuard, the full court, in an unsigned per curiam opinion, "pubicly reprimanded Judge Stuard for violating two canons of Ohio's code of judicial conduct based on his ex parte communications with the prosecution[.]" Disciplinary Counsel v. Stuard, 901 N.E.2d 788 (Ohio 2009).
A couple months after being publicly reprimanded for his handling of Jackson's case and sentencing, Judge Stuard denied Jackson's motion for a new sentencing hearing. That decision was reversed. State v. Jackson, 941 N.E.2d 1221 (Ohio Ct. App. 2010). Two years later, Judge Stuard again sentenced Jackson to death after a hearing in which he refused to allow Jackson to put in evidence "three volumes of mitigating evidence that he had not proffered at his first sentencing hearing." Only a few hours after the second sentencing hearing, Judge Stuard issued his sentencing opinion, one which "[a]part from adding some introductory paragraphs explaining the additional procedural history, making minor typographical and grammatical changes, and rewriting a few paragraphs describing the trial evidence, ... was 'almost identical' to the first." Nevertheless, the Ohio Supreme Court upheld the death sentence, ruling that Judge Stuard was not biased, did not err in failing to consider Jackson's allocution at the sentencing hearing and did not err in barring from evidence the proffered mitigation evidence. 73 N.E.3d 414.
The Sixth Circuit found the evidence of Judge Stuard's bias to be compelling, observing in part as follows:
... Judge Stuard secretly recruited the prosecutor to draft the entirety of an opinion sentencing Jackson to death: he left the prosecutor to turn his two pages of incomplete, handwritten notes into a twelve-page opinion outlining the facts and procedural history, weighing the aggravating and mitigating factors (while characterizing Jackson's mitigating evidence as "self-serving," "not convincing," and "lacking sincerity"), and ultimately imposing the death penalty. Although "ex parte contact is not, in itself, evidence any kind of bias," it is hard to imagine a more "extreme" case of bias from ex parte contact then this one.
And Judge Stuard's conduct evidencing bias did not stop there. After his improper ex parte contacts came to light, he refused to accept responsibility, stating that he did "nothing wrong." During his disciplinary proceedings, Judge Stuard downplayed his conduct by claiming that the prosecution was simply performing a ministerial task and purportedly gained no tactical advantage from writing the opinion.
... And at [Jackson's second sentencing] hearing, he took the time to express his disagreement for the need to hold a rate sentencing hearing, claiming that the higher courts "misunderstood what occurred" but that he was nonetheless required to abide by the rulings.
...
... After his unethical behavior was exposed, he delayed Jackson's resentencing; decline to accept responsibility for his impropriety; and refused to issue an untainted, personally crafted sentencing opinion. Judge Stuard could impose the death penalty, but he could not be bothered to draft an opinion explaining why. These actions show a "deep-seated" favoritism toward the prosecution and antagonism toward Jackson, "making fair judgment impossible"
The failures of the Ohio state court system did not end there. The Sixth Circuit engaged in an extended discussion of case law regarding a capital defendants clearly-established right to present any and all mitigating evidence including at a subsequent sentencing hearing evidence that had not previously been available. The Sixth Circuit framed the question as follows:
In light of this clearly established federal law, the question then becomes whether the Ohio Supreme Court's decision affirming the trial court's exclusion of additional mitigating evidence at Jackson's resentencing was an unreasonable application of, or contrary to, this clearly established law. Unquestionably, the answer is yes.
The case does show extreme judicial malfunction. Jackson's crime was a terrible crime. The trial court judge, Judge Stuard, who retired in 2013 shortly after Jackson's second sentencing hearing, could not be bothered to do his job properly, perhaps because he was so disgusted and appalled by the crime or perhaps because he should already have retired. But he was given a second chance to do it right, and it appears went out of his way not to do so. The Ohio Supreme Court then through egg on its own face by choosing to ignore these breakdowns in the lower courts. As the Sixth Circuit observed, "this case is the epitome of ... an extreme judicial malfunction."
Robert L. Abell
www.RobertAbellLaw.com
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