Ohio Governor Grants Reprieve to Prisoner Who Was Abandoned by Attorneys

Ohio Governor Mike DeWine has granted a reprieve to Cleveland Jackson, delaying his execution date from November 13, 2019 to January 13, 2021, because of a misconduct complaint filed against his previous appellate attorneys. The ethics complaint alleges that John Gibbons and James Jenkins, who were appointed in 2007 to represent Jackson during his habeas corpus appeal, missed critical filing deadlines, did not meet with their client for years, and even failed to inform him when an execution date was set. Without consulting with Jackson, they also rejected offers of help from the Capital Habeas Unit for the Northern District of Ohio.

The Board of Professional Conduct, the disciplinary branch of the Ohio Supreme Court, filed the complaint on September 27, 2019. Governor DeWine issued the reprieve three days later. The reprieved marked the sixth time Jackson’s execution date has been postponed.

A news release issued by the Governor’s office on September 30 suggested that the Jackson’s execution might be postponed beyond the time authorized by the reprieve order. “While a certified disciplinary complaint is only an allegation, this is a serious allegation raising significant questions that need to be resolved in the disciplinary process,” the statement said. “It is prudent to issue a reprieve in this matter until the disciplinary process is resolved.”

The statement also said the Ohio Department of Rehabilitation and Correction was experiencing “[o]ngoing issues” relating to its ability “to acquire drugs pursuant to their protocol.”

The 25-page ethics complaint sets forth a litany of alleged misconduct by Gibbons and Jenkins, including failing to provide competent representation; failing to act with reasonable diligence and promptness in representing Jackson; failing to reasonably consult with Jackson about the case, keep him informed of developments in the case, and respond to his inquiries; failing following their withdrawal from the case “to take steps, to the extent reasonably practicable, to protect [Jackson’s] interest”; and “engaging in conduct prejudicial to the administration of justice.”

In 2007, Jackson requested that federal defenders be appointed to represent him in his habeas corpus proceedings. The court denied that request and instead appointed Gibbons and Jenkins, who filed a habeas petition that was quickly denied. They appealed that denial, seeking several extensions of time before ultimately submitting a brief that, the complaint says, failed to conform to the court’s rules. After the appeals court upheld the lower court’s ruling, the Ohio federal defender’s office offered to help the two lawyers. They refuse the offer without consulting Jackson. They then failed to inform Jackson when Ohio issued a death warrant scheduling his execution for 2013. Even after agreeing to withdraw from the case, counsel remained uncooperative, failing to time provide the defense files to Jackson’s new lawyers. In response to one request for those files, Gibbons emailed to Jackson’s federal defenders: “Thank you for your gratuitous, asinine, threatening letter …. Mr. Jenkins and I are individual practitioners, not supported by the United States taxpayers, such as you and your office.” He insisted on up-front payment for the costs of retrieving the files before providing them to the new lawyers. The ethics complaint says that, when the files were turned over, they contained very little work product.

Jackson’s current lawyer, assistant federal defender Dale Baich, called the reprieve issued by Governor DeWine “entirely appropriate due to the failure of Mr. Jackson’s former habeas counsel which resulted in a problematic legal process in his case.” Baich said numerous issues “were not explored due to Mr. Jackson’s poor legal representation, [and] evidence of Mr. Jackson’s intellectual disability was not developed and presented at the appropriate time.” Baich said that prior counsel’s failures have “cost Mr. Jackson his right to raise this constitutional challenge, which would have made him ineligible for a death sentence. Now,” Baich said, “the courts may no longer have the ability to review these and other meritorious claims.”

Sources

Marty Schladen, DeWine delays anoth­er exe­cu­tion, cit­ing in part a dis­ci­pli­nary com­plaint against man’s attor­neys, Columbus Dispatch, September 30, 2019; Jeremy Pelzer and Eric Heisig, Ohio murder’r exe­cu­tion date again post­poned after mis­con­duct com­plaint against his lawyers, Cleveland Plain Dealer, September 30, 2019. See the com­plaint

filed by the Board of Professional Conduct and the state­ment of defense coun­sel.