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February 2, 2018

Are Governors considering capital clemency inclined to give great weight to capital jurors calling for a commutation?

In my sentencing class, we have been talking about all the different players in the sentencing drama, and those stories often come into especially sharp relief as we move into our capital punishment unit.  And, coincidentally, after an execution in Texas last night, Ohio has the next scheduled execution in the US so that my students can have a front-row seat concerning all the players that become involved in the sentencing drama as a death sentence gets ever closer to being carried out.

Against that backdrop, the question in the title of this post arises as a result of the news, reported at the end of this article: Ohio "Governor Kasich has faced calls in recent weeks to spare Tibbetts because attorneys say he suffered from opioid addiction.  On Thursday, a former juror in Tibbetts’ capital murder trial wrote a letter urging Kasich to grant him a reprieve.  The juror said he has since seen mitigating evidence that he had never seen at trial and he would not have recommended the death penalty if he heard about Tibbetts’ history of abuse and addiction."

The full text of the intricate four-page letter from juror Ross Allen Geiger to Ohio Gov Kasich is available at this link.  It makes for an interesting read, and here an excerpt:

All of these things lead me to one conclusion and that is that the system was and seems to be today very flawed in this case.  The State of Ohio (through Hamilton County) called on me to fulfill a civic duty one that included an unenviable task of possibly recommending death for another man.  I fulfilled this duty faithfully. 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?  Shouldn’t the officers of the court (primarily the defense attorneys) treat the life or death phase with great attention to detail and the respect it deserves?

In conclusion, Tibbets is guilty and has forfeited forever his right to freedom.  If the death penalty is reserved for the “worst of the worst”, that is murderers that truly have no potential for redemption, then I ask you to grant mercy to Tibbets.  Based on what I know today I would not have recommended the death penalty....

February 2, 2018 at 11:34 AM | Permalink


This letter is evidence of inadequacy of counsel, Bruce. Juror did not learn a material fact that may have influenced the verdict or thesentencing

Is an appellate court ruling of inadequacy of counsel a per se ruling of negligent lawyer care and of lawyer malpractice? No lawyer has wanted to answer that question for the past 5 years. A statute is need making that so.

Posted by: David Behar | Feb 2, 2018 2:41:02 PM

Isn't clemency the forum for 'everything else,' i.e. information such as juror letters that would likely be inadmissible in any preceding legal proceeding?

Posted by: John | Feb 3, 2018 12:41:33 AM

Enjoy the show, DAB

Posted by: anon | Feb 3, 2018 11:53:27 AM

I think governors should consider everything in the case including what the jury did not hear. I don't think a juror necessarily gains a privileged position by being randomly chosen to hear the case. There is always some evidence that is a double-edged sword (like defendant's use of drugs) that will be considered mitigating by some jurors and aggravating by other jurors. Defense counsel has to make a judgment call based on experience as to how most jurors react to that evidence. The fact that one juror who served on the case would have considered such evidence mitigating does not necessarily mean that the governor should place a lot of significance on that fact.

Posted by: tmm | Feb 4, 2018 11:39:47 AM

That one of the jurors who voted for death now leans hard towards life would give me some pause about going forward with an execution. I'm not suggesting that should be dispositive, but I'm not surprised to see it offered as part of a clemency application

Posted by: John | Feb 4, 2018 10:46:45 PM

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