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.”