When last we left the sorry state of capital punishment in Ohio, hapless prison officials were attempting
to execute the same man twice
after failing to find a usable vein the first time they put him onto the gurney. They did not succeed -- the death row inmate, Romell Broom, is still alive -- but the embarrassing episode did cause the Buckeye State finally to reform its dubious lethal-injection protocols. That's the good news. The bad news is that a new case, the case of Kevin Keith
, shows once again how far
Ohio is from affording capital suspects even the most basic constitutional rights.
The horrible story starts, as many capital cases, do, with the sale of crack cocaine. At Keith's trial, prosecutors alleged, and jurors agreed, that on Feb. 13, 1994, Keith murdered three people in a spray of bullets, including a 4-year-old girl, because he believed the adults had informed on him to police investigating Keith's illegal drug sales. Several eyewitnesses came forward to testify against Keith. Notably, Keith's trial attorneys did not present mitigating evidence on his behalf during the sentencing phase of his trial, at which Keith received the death penalty.The first round of appeals ended in 1998. A second round of appeals, this time before the federal courts of Ohio, ended in 2008. And another set of appeals ended last week.
Keith now faces
a Sept. 15 execution date while claiming still to be an innocent man. There is nothing unusual about such proclamations. They occur all the time and almost always fail. But the Keith case offers some compelling reasons why a new trial or at least a commutation of Keith's capital sentence may be warranted. Indeed, Keith's formal request for clemency to Gov. Ted
like a Scott Turow novel. The discovery of new witnesses? Check. Whiff of prosecutorial misconduct? Check. Poor police work? Check. The presence of another, more likely suspect? Check. Terrible defense counsel? Check. The victim's family concerned that the wrong man has been tagged? Check.
Given the bipartisan legal and political support for Keith, including from some 31 former judges and prosecutors
, it's a little surprising that the state courts of Ohio and the federal 6th U.S. Circuit would have allowed this capital conviction to get this far. As a lawyer, what strikes me most about the Keith clemency request -- now under consideration by Strickland -- are the pesky facts
supporting the condemned man's request
for a new trial. Ohio claims these new problems are "immaterial surplusage to the facts which clearly support" Keith's conviction and sentence. But a lot of otherwise reasonable people, locals who have been living this case for nearly two decades, evidently aren't so sure.
For example, at the time of Keith's trial, the police mentioned a witness -- Amy Gimmets -- who was alleged to have given them the name "Kevin" as the shooter in the heinous murder. What defense attorneys discovered, however, is that "Amy Gimmets" evidently does not exist. In their clemency brief, they wrote:
"The trial court relied on Capt. Stanley's claim that Amy Gimmets had given him the name Kevin . . . Knowing Amy Gimmets is a fake name would not have only been helpful there, but also it would have been powerful evidence to the jury, as it would have further undermined the reliability of [prosecution witness] Richard Warren's identification [of Keith as the shooter] and the police methods used to obtain it."
Keith's attorneys also argue that 911 police logs do not support the police and prosecution theories linking Keith to the triple murder. The tapes show that one important witness -- John Foor -- did not, as prosecution witnesses had suggested, call the police to tell them the name of the shooter was "Kevin." Defense attorneys say that the tapes also show an important discrepancy in the testimony of a trial witness who claims she found a shell casing -- "the sole piece of physical evidence the police tenuously connected" to Keith, the lawyers say -- near the scene of the crime.
On top of these structural defects in the Keith conviction, there is also nagging evidence which indicates that another man, Rodney Melton, may have committed the crimes for which Keith is about to be executed. Of Melton, Team Keith wrote:
" . . . the police never looked into the most likely suspect -- Rodney Melton . . . Rodney was seen around the area shortly after the shootings; he had the same type of car the shooter drove; the license plate of his car matched the partial number the police lifted from the snow; he knew the type of ammunition used . . . he has an extensive and violent criminal record, including murder; he told a police informant he was paid $15,000 to cripple a family member of several of the shooting victims; and the night of the shootings Rodney showed up at the hospital to tell that family member that the death of his family was what he gets for snitching."
What does Ohio say about all this? Plenty. Here's a portion of the state's response to Keith's clemency request:
"Keith attempts to deceive this Board into believing he is actually innocent of these heinous murders. Not one of his claims directly attacks the conviction. He merely attacks, as he has throughout his legal appeals, the immaterial surplusage to the facts which clearly support his conviction and sentence. Multiple witnesses identified Keith as the perpetrator of the crime. Keith was the person with the motive to commit the crime. Keith had access to the vehicle seen at the scene of the crime and which left behind a partial license plate impression in the snow. A shell casing was located across the street from where Keith picked up one of his two girlfriends two hours after the murder. Additionally, the jury, who was able to judge the credibility of the witnesses, did not believe his alibi. Nor did the jury believe Rodney Melton was the killer, despite Keith putting forth that theory at trial."
A generation ago, following the renewal of capital punishment in America in the wake of the U.S. Supreme Court ruling in Gregg v. Georgia
, it was left to the courts to resolve the types of thorny questions posed by the Keith case. Experts at evaluating evidence, trial and appellate judges were encouraged, or at least not thoroughly discouraged, to dig down deep into disputes like this, to question law enforcement work more rigorously, and to not simply cast off onto the executive branch (via clemency) the responsibility of acting as a safety net to ensure that no innocent man or woman is ever executed. The courts took care of these cases and governors, generally, did not.
In the intervening decades, however, all that changed. Conservative jurists, led by the late Chief Justices Warren Burger and William Rehnquist, have dramatically limited
the arrest, trial, and post-conviction
rights of men like Keith. The lower courts and the state courts and the Congress and state legislators around the country have done likewise. The result is the Keith case. Despite obvious questions about the man's conviction, and despite atrocious procedural rules that often block meaningful appellate review, the very prosecutors who sanctioned a sloppy trial and then defended its result now evidently get to say to the governor, as they did at Keith's clemency board hearing last week: "Furthermore, both the state and federal courts have repeatedly upheld his conviction, even though Keith made the exact same claims he is making to this board."
For Keith, it's not surprising that the whole thing smacks of a three-card monte game. The police and prosecutors play fast and loose. The courts now are bound not to ask too many questions following a jury's verdict. And the governor's mansion is interested in politics more
than in the Constitution. It's hard to say today whether Keith deserves a better fate. But the rest of the citizens of Ohio surely do.