Wednesday, Sep 19, 2018
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Ray Tibbetts’ case is exactly what executive clemency is for

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This undated file photo provided by the Ohio Department of Rehabilitation and Correction shows death row inmate Raymond Tibbetts, convicted of fatally stabbing Fred Hicks in 1997 in Cincinnati.

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In my more than four decades as a law professor, I have studied issues of fairness in our criminal justice system, particularly in the area of the death penalty. Thus I was struck by a question that a juror who served Ray Tibbetts’ capital trial, Ross Allen Geiger, posed in a letter to Gov. John Kasich:

“Governor, if we are going to have a legal process that can send criminals to death that includes a special phase for mitigation shouldn’t we get it right?”

Mr. Geiger’s question gets to the heart of why Gov. Kasich should exercise his executive clemency powers now to commute Tibbetts’ death sentence to a life sentence with no opportunity for parole.

Mr. Geiger spoke out after coming across mitigating evidence offered to support Tibbetts’ recent request for clemency. The plea for life at trial had been meager, with vague references to a “horrible” childhood and “not very happy” foster homes from a single witness. And the prosecution disputed even this minimal presentation, claiming to have read the social services records extensively without seeing even “one reference in that entire record to anything about a terrible childhood.”

As soon as Mr. Geiger read information offered with Tibbetts’ clemency application, he knew that something had gone terribly wrong during the trial.

Contrary to the prosecution’s characterization of the records as showing that Tibbetts’ foster-home experience was “the best thing that ever happened to him,” Mr. Geiger saw reports of severe physical abuse in Tibbetts’ first foster home, including that he and his siblings were beaten, burned, tied to beds, and forced to urinate on themselves. The records also show that the second foster home, which the prosecutor had called a “wonderful placement” for Tibbetts, was actually deemed unfit for further foster placements, and a caseworker noted that the “total lack of feeling these people show is quite overwhelming.”

The same was true of the prosecutor’s argument at trial that Tibbetts’ siblings had grown up in the same environments but turned out fine. Mr. Geiger learned that if the defense attorneys had done their jobs, they could have told the jury that all the children, like Tibbetts, bore life-long scars of their trauma.

There’s no dispute now that jurors heard incomplete and inaccurate information about Tibbetts’ upbringing. Poor representation by the defense and misleading statements by the prosecution prevented them from learning information that was readily available at the time of trial.

Why does this matter? Mr. Geiger came forward on his own accord and stated he has no doubts that he would not have voted for a death sentence if the jurors had known the truth. This means that we — and Gov. Kasich — also can have no doubt that if the system had worked, Ray Tibbetts never would had been sent to death row. That’s because under the law in this state, if even a single juror thinks a death sentence is not appropriate, a defendant is ineligible for execution.

So, now we know that we didn’t “get it right” for Ray Tibbetts. What to do about that?

Well, just this term, the U.S. Supreme Court considered another case where the system failed to properly sentence a defendant. The Court wrote: “It is crucial in maintaining public perception of fairness and integrity in the justice system that courts exhibit regard for fundamental rights and respect for prisoners ‘as people.’” The Court said the error in the case had to be fixed; otherwise, “what reasonable citizen wouldn’t bear a rightly diminished view of the judicial process and its integrity?”

If the Supreme Court says that a mistake in sentencing a defendant to a few extra months in prison can damage the integrity of our justice system, how could anyone say that taking a man’s life in spite of the life-or-death mistakes that happened during Tibbetts’ trial is just?

Without once mentioning Ohio’s law that eliminates the death penalty as an option based on the vote of a single juror, a majority of the Ohio Parole Board nevertheless voted against recommending clemency for Tibbetts. In their view, the mitigating evidence doesn’t overcome Tibbetts’ crime. But this misses the critical point of the supplemental hearing: Ross Geiger, whose views actually had the power to keep Tibbetts off death row, thinks his execution is not appropriate now that he’s seen the information the jury should have gotten at trial.

Only Gov. Kasich can now correct the breakdown in our criminal justice system by granting clemency and giving Ray Tibbetts the life sentence he would have received if the jurors had been told the evidence in the first place.

Executive clemency is supposed to act as fail-safe protection against an unjust execution, especially when information comes out too late for the courts to act. This exact situation unfolded in Mr. Tibbetts’ case. Governor Kasich should show leadership and grant clemency to restore faith in the integrity of Ohio’s criminal justice system.

Joshua Dressler, a Professor Emeritus of Law at The Ohio State University Moritz College of Law, is internationally renowned as an authority on criminal law and procedure.

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