COLUMBUS -- The lone woman on Ohio's Death Row again asked the state's high court to overturn her sentence, this time challenging the affirmation of her capital punishment by a judge who didn't hear the original case.
Legal counsel for Donna Roberts, arguing before the Ohio Supreme Court Jan. 7, said she should have been allowed to directly address the new judge as part of the sentencing process.
"The judge who sentenced Donna to death did not preside over the trial, preside over the penalty phase and did not preside over the actual allocution," said attorney David Doughten. " Is this permitted under Ohio's statutory death penalty scheme or permissible under the Sixth and Eight Amendment?"
He added, "The new judge did not hear Donna actually speak [That judge] did an evaluation from the bare bones of the allocution. The argument here is that this defeats the process of allocution."
Prosecutors, however, countered that the new judge involved in the case reviewed all of the case material and appropriately affirmed Roberts' death sentence. Besides, Roberts told the original jury that capital punishment was the only option in the case, said Assistant Prosecutor LuWayne Annos.
"That's the sentence that she asked for," Annos said, adding of Roberts, "There's no change of heart there. There's no indication that she regrets her behavior in this case, her role in the murder of her ex-husband. She never expressed remorse, never asked [the original judge] when she did her live allocution to impose a sentence other than the death penalty. She basically used it for self promotion."
Roberts and her then-boyfriend, Nathaniel Jackson, were sentenced to death for the 2001 murder of her ex-husband, 57-year-old Robert Fingerhut.
According to documents, Jackson and Roberts planned the murder for months, hoping to collect insurance money. Roberts provided Jackson with access to the Howland home she and Fingerhut shared, where Jackson shot the victim multiple times.
Jackson was tried and convicted separately, though his case has a similar series of high-court challenges and remands. The Ohio Supreme Court affirmed his death sentence last August.
Roberts' case was vacated twice by justices and remanded to the trial court for resentencing, initially because prosecutors had assisted in writing the judge's original opinion.
She later successfully argued that the judge in the case should have considered her history of depression, head injuries and other mitigating factors before handing down a death sentence.
In the latest case, Roberts' legal counsel argued that her death sentence should be vacated because the original judge had died, leaving a new judge to decide a death sentence without being involved in the original trial or hearing from Roberts directly.
"The argument here is that that defeats the purpose of allocution," Doughten said. "The whole purpose of allocution [is] the defendant can look at the judge, talk to the judge directly. And the judge, along with the words, can determine the demeanor, the extent of remorse, the attitude -- all of that comes into the judge's play. Here it's just from a bare bones sheet of paper in which the judge had to then make the determination."
Chief Justice Maureen O'Connor pressed the attorney on that issue, asking about the charity work, head injury and other details later offered by Roberts.
"All of that is in black and white for the judge to be significantly aware of," she said. "Are you then saying the drama of having Ms. Roberts state it in front of a judge in a courtroom is the missing element here?"
Doughten responded, "Yes, as far as strictly allocution."
Prosecutors, in court filings, argued that Roberts, in an unsworn statement given as part of the case, told the jury "that she would not provide any mitigating evidence. She then said, 'You are bound by law to give me one sentence, the death penalty. You have no other choice. That is what I'm asking you to do, because it is the right thing to do.'"
Annos said Tuesday, "The purpose of the allocution is for the defendant to come before the court and to express remorse, to beg or plead or whatever word you want to use, for leniency. Donna Roberts never did that Donna Roberts got up in her mitigation hearing before a jury and basically told them to impose the death penalty or recommend the death penalty because she presented no mitigation testimony whatsoever."
Judge William O'Neill asked whether Roberts had stated directly that she wanted to receive the death penalty in the case.
Annos responded, "I don't know she said that she wanted it, but she said that the jury was required by law to recommend it for her."
Marc Kovac covers the Ohio Statehouse for Gatehouse Media. Email him at firstname.lastname@example.org or on Twitter at Ohio CapitalBlog.