Death Row Reprieve: Does Ohio Also Owe Kevin Keith a New Trial?

Convicted murderer Kevin Keith could look at the week's dramatic developments in his life in one of two ways. He could consider himself very lucky that Ohio Gov. Ted Strickland commuted his capital sentence to life in prison without parole. Or he could consider himself still accursed that he'll likely remain in prison anyway for the rest of his natural days despite his claim that he did not murder two adults and a four-year-old child -- family members of an alleged police drug informant -- in 1994.

How do you see the glass, Mr. Keith, now that the very government that incarcerates you has expressed doubt about the evidence which put you away? Is it half-full or half-empty?

It's a contrast that Gov. Strickland candidly acknowledged in his clemency announcement. "It is my view, after a thorough review of the information and evidence available to me at this time, that it is far more likely that Mr. Keith committed these murders than it is likely that he did not," Strickland said. "Yet, despite the evidence supporting his guilt and the substantial legal review of Mr. Keith's conviction, many legitimate questions have been raised regarding the evidence in support of the conviction and the investigation which led to it. Under these circumstances, I cannot allow Mr. Keith to be executed." The governor's order followed the Ohio Parole Board's Aug. 10 unanimous recommendation that his execution proceed.

Betwixt and between, stuck in the middle again. "Far more likely than not" -- Gov. Strickland's phrase -- is no substitute for the "guilty beyond a reasonable doubt" standard applied in criminal cases. "Legitimate questions" raised about the evidence -- again, from the commutation announcement -- would normally become "mitigating factors" during the penalty phase of a criminal case. But what happens when those questions are raised long after the trial and largely as a result of shoddy police work to begin with? Strickland seemed to invite further legal review. After eliminating Keith's execution date, the governor wrote: "Should further evidence justify my doing so, I am prepared to review this matter again for possible further action."

Indeed, the Keith case is still a mess -- dubious police work, sketchy witnesses, poor lawyering, feckless judges, a plausible alternative suspect, the works. The only thing missing now is the drama of a looming execution. Keith's attorneys acknowledged as much Thursday. The commutation "means our work is unfinished," they wrote. "Mr. Keith remains incarcerated for a crime he did not commit, and that crime remains unsolved. The same compelling reasons that support Governor Strickland's actions today warrant a new, fair trial for Mr. Keith, including the existence of newly discovered evidence, the revelation of evidence withheld by the State, and the development of new science behind eyewitness identification, all of which point to Mr. Keith's innocence."

There have been 249 capital commutations in the United States since 1976, the year the Supreme Court gave the death penalty back to the states as a sentencing option. There have been 1224 executions across the country during that time. As of Jan. 1, 2010, there were 3,268 men and women on death row in the 35 states (and federal jurisdictions) which have capital punishment. Since 1973, according to the Death Penalty Information Center, "130 people have been released from death row with evidence of their innocence." Many of these releases are the result of DNA mismatches -- an issue not present in Keith's case.

Nevertheless, having come this far it seems to me that Ohio must go further and figure out, once and for all, whether it has imprisoned the wrong man for the past 16 years. Strickland didn't give Keith a sentencing break because the prisoner had turned into a government witness or had undertaken a prison conversion. The reasons Keith's sentence was reduced relate directly to the strength of the prosecution's trial evidence against him -- and are material enough for any reasonable person to doubt whether he would have been convicted had these facts come before the original judge and jury. It is now beyond contention that the rot here is in the core of the apple and not its skin. Just because the government can't go back and re-do every bad conviction doesn't mean it shouldn't go back and re-do the ones it can.

With the first days of the rest of his life, Keith now will have time to explore all of these topics as his lawyers continue to push for a substantive hearing or new trial. He'll have time to read how poorly it could have gone for him had he been a prisoner seeking clemency in Texas under then-Gov. George W. Bush and his counsel, Alberto Gonzales. He'll have time to read about how capital punishment may be on the wane in North Carolina after revelations there about the state crime lab's dishonorable work. Or perhaps about how the capital punishment system in Pennsylvania is a mess.

Alas, there is no shortage of literature out there describing all sorts of problems in and with capital cases. Makes you wonder why commutations like the one Keith was gracefully given this past week are more rare than executions, doesn't it?