WARREN - With Ohio's Supreme Court already ordering a third formal sentencing for the state's only female death row inmate, assistant county prosecutor LuWayne Annos wants to make sure Donna Roberts isn't given the chance to re-mitigate her case.
Roberts, formerly of Howland, was originally sentenced to death more than 10 years ago for a plan she hatched with her ex-convict lover to kill her husband and collect insurance proceeds.
Roberts' attorney in January filed with the U.S. Supreme Court seeking a writ that would allow him to present evidence and testimony to persuade a judge why the 69-year-old woman should be spared the death sentence.
Roberts against the advice of her trial attorneys chose not to offer any mitigation evidence at her 2003 capital murder trial. She was even examined by a psychological expert to make sure she was competent to make that decision.
Attorney David Doughten now wants to develop Roberts' claims that she grew up in a very abusive household, was raped by a cousin, had been injured and hospitalized after three serious car accidents, suffered from depression, attempted suicide and experienced hallucinations. Doughten even wants to delve into Roberts' depression that she claims has worsened since her confinement in the Ohio Reformatory for Women in Marysville.
''Imagine that, she is depressed because she's in prison. They even want to explain more why she was turned down for Social Security benefits that her husband thought she was entitled to after the car accidents,'' said Annos, chief appellate assistant in the Trumbull County Prosecutor's Office.
Annos was preparing arguments to be filed with the U.S. Supreme Court this week that explain why Roberts' third sentencing should include only what the state Supreme Court ordered another allocution by Roberts and Doughten and a written decision by the judge that points out what weight was given to the remarks by the defendant and what her new sentence should be.
Former Common Pleas Judge John M. Stuard presided over the trial and the first resentencing. The case has now been turned over to Judge Ronald Rice since Stuard retired and has since died.
Justices vacated Roberts' death sentence for the second time in October and returned the case to the trial court for the second resentencing with the opinion that Stuard did not consider the potentially mitigating information that Roberts provided at her resentencing hearing in 2007, when she spoke of serving as a nurse and providing care to Israeli soldiers.
Annos argues that Stuard clearly heard the allocution, a statement made by a defendant to the court, and even referred to it from the bench, but simply forgot to put those references in the written sentencing memorandum that Ohio justices reviewed.
''This was not remanded for purposes of a new mitigation hearing of the presentation of evidence or testimony deliberately waived by (Roberts). This case presents absolutely no constitutional implications,'' Annos states in her written arguments. ''At no point during the statement (allocution) did (Roberts) express remorse for the murder nor did she ask the court to spare her life.''
The case arose from the murder of Robert Fingerhut, who operated Greyhound bus terminals in Warren and Youngstown. Roberts lived with Fingerhut, who was her former husband. Fingerhut owned two life insurance policies, with a total benefit of $550,000 and named Roberts as the sole beneficiary.
At some point while living in an Avalon Drive home with Fingerhut, Roberts had an affair with Nathaniel Jackson. In 2001, Jackson was sent to prison. During his imprisonment, Roberts and Jackson talked by phone and exchanged letters. Those conversations and their correspondence, monitored by prison authorities, revealed that they planned to murder Fingerhut and served as key evidence for the prosecution during trial.
In December 2001, Jackson was released from prison. Roberts picked him up from prison, and spent that night and most of the next few days with him. Two days after Jackson's release, Fingerhut, 57, was shot to death at home. Jackson was convicted of murdering Fingerhut and was sentenced to death.
The Supreme Court heard Roberts' mandatory death penalty appeal after her conviction. In its first decision in the case in 2006, the Supreme Court upheld her aggravated murder conviction and the death specification.
But the court determined that Stuard had engaged in improper ex parte communications with the prosecutor by letting the prosecutor help draft the sentencing opinion. The Supreme Court vacated Roberts' death sentence and returned the case to the trial court for the first resentencing of Roberts.