Two Death Sentence Reversals are Further Evidence the Kentucky Death System is Broken

Last week there were two additional reversals of Kentucky death sentences.

The United States Court of Appeals for the Sixth Circuit reversed Roger Wheeler’s death sentence. The February 20, 2015 decision recognized that a juror was improperly excused from potential jury service in violation of the right to a fair cross section of the community as required by the 6^th Amendment protection.

On February 19, 2015 the Kentucky Supreme Court reversed Michael D. St. Clair’s capital conviction due to improper introduction of prejudicial 404(b) evidence of an unrelated murder in New Mexico allegedly committed by St. Clair, and improper evidence of the New Mexico victim's background.

There has to be a fix to the broken capital system in Kentucky.

Without significant changes, Kentucky’s death penalty system will continue to be inefficient and ineffective

The American Bar Association Kentucky Assessment Team examined all death sentences imposed in the Commonwealth since 1976, and found that, as of November 2011:

§  78 people have been sentenced to death

§  52 of these individuals have had a death sentence overturned on appeal by Kentucky or federal courts, or been granted clemency,

§  an error rate of  67%

Since 2012 there have been 2 additional death sentences and 2 additional reversals. There are 33 persons on Kentucky’s death row.

The Kentucky Assessment Team found that capital prosecutions occur in far more cases than result in death sentences, concluding that, “This places a significant judicial and financial burden on Commonwealth courts, prosecutors, defenders, and the criminal justice system at large, to treat many cases as death penalty cases, despite the fact that cases often result in acquittal, conviction on a lesser charge, or a last minute agreement to a sentence less than death.” 

The comprehensive 2011 program Audit recommended changes must be made to eliminate waste, abuse and error. Areas of needed reform identified by the ABA Kentucky Assessment Team audit included:

• Inadequate Protections to Guard against Wrongful Convictions (Chapters 2, 3, 4).
• Inconsistent and Disproportionate Capital Charging and Sentencing (Chapter 5).
• Deficiencies in the Capital Defender System (Chapter 6).
• Capital Juror Confusion (Chapter 10).
• Imposition of a Death Sentence on People with Mental Retardation or Severe Mental Disability (Chapter 13).
• Lack of Data (Chapter 12).
• Prevention of Wrongful Convictions (Chapters 2, 3, 4, 5).
• Improvement of Defense Services (Chapter 6).
• Ensuring Proportionality in Capital Charging and Sentencing (Chapters 5, 7).
• Error Correction During Post-Conviction Review (Chapters 8, 13).
• Gubernatorial Clemency Powers (Chapter 9).
• Improved Juror Instruction and Comprehension (Chapter 10).

Senator Robin Webb’s Senate Bill 190 implements many of the important reforms recommended by the ABA Kentucky Assessment Audit in an effort to ensure the system works. It does the following:

1. Creates minimum standards for eyewitness identification procedures to eliminate mistaken or false identifications
2. Directs that interviews of suspects be recorded so courts and juries receive accurate and reliable information about a defendant’s statement
3. Prohibits the execution of a person with a severe mental illness
4. Assures the independence and proficiency of the state crime lab
5. Requires ongoing training and competency on death penalty issues for law enforcement, public defenders, prosecutors, corrections officers, and judges
6. Creates a statewide database for reliable ongoing information relating to capital cases
7. Mandates the Department of Public Advocacy to enforce standards for death penalty cases to be handled by trained competent defense attorneys

An overwhelming majority of Kentuckians support fixing the state’s death penalty system

A 2011 poll shows that a majority of Kentuckians support a suspension of executions to allow time for problems within the system to be remedied. The November 30 - December 4, 2011 survey of 405 most likely voters statewide found 62 percent support a temporary halt to executions. The support was consistent across the state: a majority of men, women, urban, suburban, and rural, Republican, Democratic, and Independent voters all favored a temporary halt to executions. The poll, with an error rate of plus or minus 4.9 percent, was conducted for the Kentucky Assessment Team by Lake Research Partners of Washington, D.C.

The two death sentence reversals in the last week are further evidence the Kentucky death system is broken. The time is now to fix the Kentucky death process or eliminate it.  There are some people who should be imprisoned for the rest of their life. Life without parole meets all appropriate needs of our society.

Contributed by Public Advocate Ed Monahan

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT reverses ROGER L. WHEELER death penalty case

Like all potential jurors, potential jurors in Kentucky have a constitutional right to be eligible to serve on a jury when qualified to do so. Defendants like Mr. Wheeler also have a constitutional right to have such jurors eligible to serve on a jury.

The February 20, 2015 decision by United States Court ofAppeals for the Sixth Circuit  recognized these long-standing constitutional rights and vindicated the rights of potential jurors, Kentucky residents.

Specifically, the Sixth Circuit recognized that a juror was improperly excused from potential jury service in Mr. Wheeler’s case. This constitutional violation goes to the heart of “procedural fairness in administering the death penalty” and therefore required vacating Mr. Wheeler’s death sentences. The Court identified the substantial harm, “As the Supreme Court has observed, to permit the

for-cause exclusion of an otherwise-eligible juror ‘unnecessarily narrows the cross-section of venire members’ required under the Sixth Amendment and ‘stack[s] the deck against the petitioner. To execute [such a] death sentence would deprive him of his life without due process of law.’ Gray v. Mississippi, 481 U.S. 648, 658-59 (1987) (quoting Witherspoon v. Illinois, 391 U.S. 510, 523 (1968)).”

David Barron and Joe Flood represent Mr. Wheeler. The Sixth Circuit decision is found at  this link.  

David Barron said, “Mr. Wheeler has been on death row for approximately fourteen years. While this ruling takes a step towards protecting the integrity of the judicial system and corrects an unconstitutionally imposed sentence, it further calls into question the administration of the death penalty and the fairness of the process of arriving at a death sentence, for it took fourteen years for Mr. Wheeler’s constitutional rights to be vindicated and an extraordinary amount of money expended during that time that could be put to better use. For example, the money expended to seek a death sentence against Mr. Wheeler and the Commonwealth’s efforts to uphold an unconstitutional death sentence could have easily been used to for much needed expenses towards solving cold cases or educating our youth so that it is less likely they will later end up in the criminal justice system.”

KYSC - St.Clair - Reversing on several grounds

Michael D. St. Clair v. Commonwealth, 2012-SC-000130, rendered 2/19/15, to be published, reversing. Opinion by Justice Noble, all concurring.

In St. Clair’s third Hardin County capital kidnap trial, St. Clair was convicted of capital kidnapping and sentenced to death in 2012. The jury found three aggravators, that the victim was not released alive, that St. Clair had a prior record of conviction for a capital offense, and the kidnapping was committed during a robbery. The Kentucky Supreme Court concludes here on direct appeal that the entire case must be remanded for a possible fourth trial due to improper introduction of prejudicial 404(b) evidence of an unrelated murder in New Mexico allegedly committed by St. Clair, and improper evidence of the New Mexico victim's background.

The case in Hardin County has now been reversed on appeal twice following jury trials due to errors committed by the prosecution. Additionally, a third trial ended in a mistrial due to a prosecutor’s improper opening statement in which he alluded to an unrelated New Mexico murder. The Supreme Court attributed some of the difficulty in trying this case to choices made by the prosecution. Had the prosecution joined the kidnapping case in Hardin County with the murder case in Bullitt County, the duplicative three trials (and now possibly a fourth) in Hardin County could have been avoided and evidentiary difficulties could have been avoided. (See page 8 of the Opinion.)

The common sense, cost effective reform identified in the ABA Kentucky Assessment Team’s 2011 Report and Senator Robin Webb’s SB 190 will help fix problems in Kentucky’s troubled death penalty system.

The Opinion contains numerous evidentiary rulings, as follows:

1)      Evidence of the murder of a victim in New Mexico was reversible error because this was a kidnapping case; however evidence of the robbery and abduction of that victim was not error;

2)      Victim background evidence related to the victim in New Mexico was reversible error; “evidence of victims of other crimes beyond those being tried has no place in a criminal trial”;

3)      Proof of St. Clair’s statement that killing people was easy, and proof that St. Clair saw the killing as a joking matter and that it had excited him was improper character evidence. It should not be allowed in a retrial.

4)      Evidence that St. Clair tore up the photo of the New Mexico victim’s daughter  and commented, there’s “a bitch that’s going to grow up without a daddy” was inadmissible evidence of “despicable character”:

5)      Evidence that before his escape from jail in Oklahoma St. Clair was considered a high security risk held in maximum security was admissible because it was relevant to his motive “to do anything to avoid going back to prison” including attempted murder of a police officer.

6)      Evidence that St. Clair had at least one LWOP sentence waiting for him in Oklahoma was relevant and admissible to show his motive to attempt to kill Trooper Bennett.

7)      Evidence that St. Clair was a danger to the friends that sheltered him and that he was already wanted for murder when he arrived in Kentucky was inadmissible, but prejudice was cured by admonition.

8)      The court did not err in excluding details regarding that the aaltperp’s prior murder because it was not similar enough to the Kentucky kidnap/murder.

Wanton prosecutorial misconduct is not enough.

While the Kentucky Supreme Court acknowledges in this Opinion that there was evidence that wanton prosecutorial misconduct caused the mistrial of the second, 2009 Hardin County capital kidnap trial, the Court here holds that merely wanton prosecutorial misconduct does not meet the “high standard” for a mistrial; to win a mistrial one must prove that misconduct was intended to cause a mistrial. The defense moved for mistrial and double jeopardy did not bar the third trial.

Death penalty for kidnap upheld without jury finding of murder.

The Court fails to answer whether the trial court erred by ignoring the mandate in St. Clair v. Commonwealth, 174 S.W.3d 474 (Ky. 2005) (Hardin I) requiring a jury finding that St. Clair murdered the victim as a pre-requisite to imposing a death penalty. The Opinion—contrary to the rule in the vast majority of states—approves (in dicta) allowing the death penalty for capital kidnap regardless whether a kidnap victim dies accidentally.

St. Clair was represented at trial by Scott Drabenstadt and Justin Brown. He was represented on appeal by Susan Balliet, Sam Potter, and Robert Yang.

Contributed by Susan Balliet.  

Senator Webb files bill to reform Kentucky’s death penalty laws

Senator Robin L. Webb, D-Grayson, has filed a bill to reform Kentucky’s death penalty process to ensure an innocent person is not executed.

“If you have the death penalty in the commonwealth, we need to make sure it is administered in a fair and just way,” said Senator Webb, who is a practicing attorney. “There is a humanitarian aspect to this in additional to a fiscal impact to the state. We’ve had a lot of litigation over our manner of execution.”

The American Bar Association released an intensive report in December 2011outlining a myriad of problems with Kentucky’s death penalty. It cited 95 specific things that need to be fixed. Senate Bill 190 is a response to the reasoned recommendations of the ABA Assessment Team, which included two retired Kentucky Supreme Court Justices, a former chair of the House Judiciary Committee, distinguished law professors and respected bar leaders, all from Kentucky. This was the most extensive study and analysis of the manner in which the death penalty is administered in Kentucky that has been undertaken.

“The Kentucky Death Penalty Assessment Team, sponsored by the American Bar Association, spent over two years studying virtually every aspect of the administration of the death penalty in the commonwealth,” said Linda Sorenson Ewald, co-chair, Kentucky Penalty Assessment Team. “Our review led us to the inescapable conclusion that our current system is deeply flawed and in serious need of reform. The Kentucky Assessment Report was released over three years ago and, to date, not a single recommendation has been implemented. Senate Bill 190, introduced by Senator Robin Webb, is a significant step forward in addressing some of the most critical problems of our capital system. Something must be done immediately. We cannot continue to close our eyes to the unfairness of our current practices and procedures and to the risks of executing an innocent person.”

Senator Webb’s bill calls for more law enforcement training in the use of lineups, interrogations and mental health issues. It would also require judges to have training in recognizing cognitive disabilities and mental health issues.

The bill also addresses the growing use of DNA in criminal prosecutions and in exonerating inmates on death rows across the United States. SB 190 would move the state crime laboratory to an independent office in the Justice and Public Safety Cabinet, develop law enforcement training relating to biological evidence and ensure defense attorneys have equal access to DNA testing. Senator Webb said one important goal of the legislation is to make sure biological evidence is preserved.

SB 190 builds on legislation from 2013 (House Bill 41) that allowed people already convicted of a crime to get evidence in their cases tested for DNA. That process is known as post-conviction DNA testing.

It would also set minimum standards for both defense attorneys and medical examiners involved in death penalty cases. That’s in addition to creating guidelines for the exercise of prosecutorial discretion in capital cases.

“This legislation is not to abolish the death penalty,” said Senator Webb, “but rather recognizes that if we have the death penalty, it must be done right. We must make sure that any deficiencies in the administration of the death penalty in Kentucky are corrected.”

The assessment team found that from 1976 to November 2011, 78 people were sentenced to death and 52 of these individuals had a death sentence overturned on appeal or federal courts, or been granted clemency. Just last week, there were two additional cases of men on Kentucky’s death row having their convictions overturned by two separate courts. Within the period from 1976 to 2011, the assessment team found an error rate of 67 percent.

“Since 1976, there has been one involuntary execution in Kentucky while we have had most death sentences reversed because of grievous errors at the cost of hundreds of millions of dollars. Since 2011 we have Kentucky legal experts telling us through a comprehensive Program Audit that we have to make many changes to fix the broken system. Last week there were two additional reversals of Kentucky death sentences because of mortal errors. A majority of Kentuckians support a suspension of executions to allow time for problems within the system to be remedied. The time is now to reduce the error, waste, and abuse with the common sense reforms in Senator Webb’s SB 190,” said Ed Monahan, public advocate, Kentucky Department of Public Advocacy.

Others also lend their voices in support of SB 190.

“The Kentucky Coalition to Abolish the Death Penalty appreciates Senator Webb's willingness to limit the possibility of wrongful convictions in Kentucky's death sentencing process. Until full repeal is possible, and Kentucky gives up on the death penalty, as did Justice Harry Blackmun and The American Law Institute, Senate Bill 190 is a step in the right direction,” said the Rev. Patrick Delahanty, chair, Kentucky Coalition to Abolish the Death Penalty.

“In December of 2011, the Kentucky Death Penalty Assessment Report pointed to numerous ways in which the death penalty in Kentucky was broken, and called for a temporary suspension of executions unless the problems were addressed. If enacted into law, Sen. Webb's SB 190 would go a long way toward ensuring fairness and reliability in Kentucky's death penalty procedures. Unless SB 190 is passed, the problems addressed in the 2011 report will continue to call into question whether Kentucky can have a constitutional death penalty,” said Ernie Lewis, KACDL legislative agent and former Kentucky Public Advocate.

SB 190 has been assigned to the Senate Judiciary Committee. 

KY should reduce the error, waste, abuse with commonsense reforms of KY’s costly death penalty process or eliminate the penalty

Kentucky has an expensive and time-consuming process of prosecuting many death eligible cases as capital cases but almost all cases end with a life or life without parole sentence. And the 35 year error rate for the few cases that result in a death sentence is 67%.

A 2011 Kentucky Audit by the ABA KY Assessment Team uncovered major deficiencies in the way the death penalty has been implemented in Kentucky since 1976. The Audit evaluated Kentucky procedures and practices against national ABA capital benchmark protocols and made 93 Recommendations in the following areas:

ABA Number of Recommendations Per Chapter
Chapter	Title	Recommendations
2	Collection, Preservation & Testing of DNA and Other Types of Evidence	4
3	Law Enforcement Identifications and Interrogations	9
4	Crime Laboratories and Medical Examiner Offices	2
5	Prosecutorial Professionalism	6
6	Defense Services	5
7	The Direct Appeal Process	1
8	State Post-Conviction Proceedings	12
9	Clemency	11
10	Capital Jury Instructions	7
11	Judicial Independence	6
12	Racial and Ethnic Minorities	10
13	Mental Retardation, Mental Illness, and the Death Penalty	20
Total Recommendations		93

Senator Robin Webb’s Senate Bill 190 implements many of the important reforms recommended by the ABA KY Assessment Audit in an effort to ensure the system works. The reforms in SB 190:

1. Create minimum standards for eyewitness identification procedures to eliminate mistaken or false identifications
2. Direct that interviews of suspects be recorded so courts and juries receive accurate and reliable information about a defendant’s statement
3. Prohibit the execution of a person with a severe mental illness
4. Assure the independence and proficiency of the state crime lab
5. Require ongoing training and competency on death penalty issues for law enforcement, public defenders, prosecutors, corrections officers, and judges
6. Create a statewide database for reliable ongoing information relating to capital cases
7. Mandate the Department of Public Advocacy to enforce standards for death penalty cases to be handled by trained competent defense attorneys

The time is now to fix the KY death process or eliminate it.  There are some people who should be imprisoned for the rest of their life. Life without parole meets all appropriate needs of our society.

Contributed by Ed Monahan

Two KY Lawmakers Want Prosecutors to Put a Price on Death Penalty Cases - Public News Service

Kentucky has the death penalty - but no firm price tag on what it costs to send a convicted felon to death row.

Sen. Gerald Neal, D-Louisville, and Rep. David Floyd, R-Bardstown, who both oppose the death penalty, have filed companion resolutions -
SCR 11 and HCR 30 - to determine the costs of administering the law. While public defenders have provided cost estimates, the lawmakers say, prosecutors have been unwilling to cooperate. - See more at: http://www.publicnewsservice.org/2015-01-28/criminal-justice/two-ky-lawmakers-want-prosecutors-to-put-a-price-on-death-penalty-cases/a44098-1#sthash.V3Rl0FTe.dpuf

Kentucky has the death penalty - but no firm price tag on what it costs to send a convicted felon to death row.

Sen. Gerald Neal, D-Louisville, and Rep. David Floyd, R-Bardstown, who both oppose the death penalty, have filed companion resolutions -
SCR 11 and HCR 30 - to determine the costs of administering the law. While public defenders have provided cost estimates, the lawmakers say, prosecutors have been unwilling to cooperate. - See more at: http://www.publicnewsservice.org/2015-01-28/criminal-justice/two-ky-lawmakers-want-prosecutors-to-put-a-price-on-death-penalty-cases/a44098-1#sthash.V3Rl0FTe.dpuf

Kentucky has the death penalty - but no firm price tag on what it costs to send a convicted felon to death row.

Sen. Gerald Neal, D-Louisville, and Rep. David Floyd, R-Bardstown, who both oppose the death penalty, have filed companion resolutions -
SCR 11 and HCR 30 - to determine the costs of administering the law. While public defenders have provided cost estimates, the lawmakers say, prosecutors have been unwilling to cooperate. - See more at: http://www.publicnewsservice.org/2015-01-28/criminal-justice/two-ky-lawmakers-want-prosecutors-to-put-a-price-on-death-penalty-cases/a44098-1#sthash.V3Rl0FTe.dpuf

Kentucky has the death penalty - but no firm price tag on what it costs to send a convicted felon to death row.

Sen. Gerald Neal, D-Louisville, and Rep. David Floyd, R-Bardstown, who both oppose the death penalty, have filed companion resolutions -

SCR 11 and HCR 30 - to determine the costs of administering the law. While public defenders have provided cost estimates, the lawmakers say, prosecutors have been unwilling to cooperate.

Read the complete article 

Kentucky has the death penalty - but no firm price tag on what it costs to send a convicted felon to death row.

Sen. Gerald Neal, D-Louisville, and Rep. David Floyd, R-Bardstown, who both oppose the death penalty, have filed companion resolutions -
SCR 11 and HCR 30 - to determine the costs of administering the law. While public defenders have provided cost estimates, the lawmakers say, prosecutors have been unwilling to cooperate. - See more at: http://www.publicnewsservice.org/2015-01-28/criminal-justice/two-ky-lawmakers-want-prosecutors-to-put-a-price-on-death-penalty-cases/a44098-1#sthash.V3Rl0FTe.dpuf

Kentucky has the death penalty - but no firm price tag on what it costs to send a convicted felon to death row.

Sen. Gerald Neal, D-Louisville, and Rep. David Floyd, R-Bardstown, who both oppose the death penalty, have filed companion resolutions -
SCR 11 and HCR 30 - to determine the costs of administering the law. While public defenders have provided cost estimates, the lawmakers say, prosecutors have been unwilling to cooperate. - See more at: http://www.publicnewsservice.org/2015-01-28/criminal-justice/two-ky-lawmakers-want-prosecutors-to-put-a-price-on-death-penalty-cases/a44098-1#sthash.V3Rl0FTe.dpuf

Kentucky has the death penalty - but no firm price tag on what it costs to send a convicted felon to death row.

Sen. Gerald Neal, D-Louisville, and Rep. David Floyd, R-Bardstown, who both oppose the death penalty, have filed companion resolutions -
SCR 11 and HCR 30 - to determine the costs of administering the law. While public defenders have provided cost estimates, the lawmakers say, prosecutors have been unwilling to cooperate. - See more at: http://www.publicnewsservice.org/2015-01-28/criminal-justice/two-ky-lawmakers-want-prosecutors-to-put-a-price-on-death-penalty-cases/a44098-1#sthash.V3Rl0FTe.dpuf

Kentucky has the death penalty - but no firm price tag on what it costs to send a convicted felon to death row.

Sen. Gerald Neal, D-Louisville, and Rep. David Floyd, R-Bardstown, who both oppose the death penalty, have filed companion resolutions -
SCR 11 and HCR 30 - to determine the costs of administering the law. While public defenders have provided cost estimates, the lawmakers say, prosecutors have been unwilling to cooperate. - See more at: http://www.publicnewsservice.org/2015-01-28/criminal-justice/two-ky-lawmakers-want-prosecutors-to-put-a-price-on-death-penalty-cases/a44098-1#sthash.V3Rl0FTe.dpuf

KLJ - Getting Jurors to Awesome

Article by University of Kentucky Law Assistant Professor and DPA Commission Member Courtney Lollar.

From the Conclusion: 

The Court’s death penalty jurisprudence fails to note one of the most basic reasons why jurors can relatively easily assign responsibility elsewhere: those who authorize the death penalty are inherently removed from the ultimate result. They are never the one to personally carry out, or even observe, the execution they authorize.Even in the best of scenarios, then, juries are inevitably distant from the repercussions of the most significant ramifications of their decision. The graphic reality of the pain inflicted through the execution process is never laid out before the jurors who are tasked with authorizing the death of another.

Given this reality, if jurors are going to be tasked with the “awesome responsibility” of deciding another person’s fate, they need to have an intimate understanding of the full panoply of realities surrounding that decision. The level of discomfort jurors feel in making this decision, even without awareness of the granular details of actually putting someone to death, ultimately provides another reason to reconsider permitting such a punishment.

Read the entire article on the Kentucky Law Journal page

C-J Op-ed: Why I'm against the death penalty

Op-Ed by Allen Ault, the dean of the College of Justice & Safety at Eastern Kentucky University.

Capital punishment is not a theoretical concept for me. I have murdered five human beings for a state.

At the time of these deaths, I was director of the Georgia Department of Corrections. Ironically, the executions were carried out in the same maximum security prison where I had previously served as warden. As a result of these experiences, I became a strong opponent of capital punishment. I am against the death penalty because:

• It does not act as a deterrent.
• It is costly (for example, California has spent more than $5 billion for 17 executions).
• It is not applied to the most egregious cases.
• The criminal justice system that administers it is extremely imperfect; over the past decade, nearly 150 death row inmates have been exonerated.
• It is illogical for the state to teach citizens not to kill by killing.

The final reason for my opposition is a particularly personal one—the heavy toll capital punishment exacts from the individuals who have to carry out the sanction.

Read the complete article 

Bill to abolish the death penalty in line with Kentuckians’ views, policy developments and fiscal commonsense

Representative David Floyd (R-Bardstown) filed HB 330 on February 4, 2014 to abolish the death penalty in the Commonwealth.

Upon the filing of the bill, John David Dyche, WDRB Contributor, observed, “Two Republican state representatives, David Floyd of Bardstown and Julie Raque Adams of Louisville, joined with six Democrats, including some of the chamber's most liberal members, to sponsor House Bill 330. They want to abolish the death penalty and replace it with life imprisonment without parole for both inmates already sentenced to death and others going forward.  … To paraphrase Victor Hugo, there is nothing so powerful as an idea whose time has come.”

Kentucky’s capital system is costly. In a March 2, 2014 op-ed, Floyd said, “Conservatives are the first to call out government programs that fail to meet intended goals and cost exorbitant amounts of money.” Prosecuting a case as a capital case greatly increases the cost even when the most common result is a sentence of less than death. In our neighboring state of Indiana, a 2010 fiscal report by the Legislative Services Agency found that the average cost of a death penalty trial was around $450,000. Some cases have cost more than $1 million. In North Carolina, it was determined that “Proceeded capital cases cost at least 3 times more than similar cases that proceeded non-capital.” FY07 Capital Trial Case Study PAC and Expert Spending in Potentially Capital Cases at the Trial Level (December 2008). Since 1976 when death was reinstated as a penalty, Kentucky has spent hundreds of millions of dollars on this capital policy with little result. Kentucky has executed three people, two of whom were volunteers.  During that same period of time, three Kentucky Governors granted clemency to five people sentenced to death.

The bill follows upon a highly critical audit of the way Kentucky administers its capital process. The American Bar Association’s Kentucky Death Penalty Assessment Team called for a suspension of executions in Kentucky until the recommendations in its December 7, 2011 audit are fully implemented. From 2009-2011, the Kentucky Death Penalty Assessment Team objectively reviewed the fairness, accuracy and reliability of Kentucky’s system for administering the death penalty. The thorough review was conducted by highly respected Kentucky criminal justice experts including two former KY Supreme Court Justices. It found major deficiencies that undermine the integrity of Kentucky’s system. The ABA Report found a disturbing error rate of approximately 60%. See: http://www.americanbar.org/groups/individual_rights/projects/death_penalty_due_process_review_project/death_penalty_assessments/kentucky.html   A March 7, 2012 op-ed by 10 former Kentucky prosecutors asked that executions be suspended until these reforms were made.

Public Defenders are appointed to represent the vast majority of those charged with a capital offense and who are currently imprisoned on Kentucky’s death row. Defenders play a critical role in insuring full due process of law is accorded to their clients.  Yet, there are individuals on death row who are severely mentally ill. Several had lawyers who were ineffective. Others had trials in which serious errors occurred that remain uncorrected. Often, capital cases in Kentucky do not just result in non-capital sentences, but even in jury findings that the defendant is not even guilty of murder.  This is an enormous waste of limited resources. Numerous examples of cases that went to trial with death as a possible sentence but resulted in acquittal, reckless homicide or manslaughter verdicts exist in our state. (See list of cases that follow at the end of press release.)

“The case against death as a possible sentence in Kentucky is mounting for good reason,” said Jerry J. Cox of Rockcastle County, Chair of the Public Advocacy Commission, the statewide public defender governing board, and President of the National Association of Criminal Defense Lawyers. Cox said, “The ABA Report identified fundamental defects in the way the death penalty is administered in our state and says those deficiencies are so serious that there should be a moratorium on executions until the defects are fixed.” Cox noted that, “The polling of Kentuckians shows they prefer a different course. Now, Representative Floyd with bi-partisan co-sponsors, fittingly calls for an end to Kentucky’s failed, costly experiment with the death penalty.  Its elimination will save the state millions of dollars, allow prosecutors, public defenders and the courts to focus more resources on other cases which will advance their timely resolution and will avoid wasteful prosecution of cases as capital that result in verdicts far less than death. I agree with John David Dyche that ‘The conservative case against the death penalty has come to Kentucky. It is a compelling one.’” 

“The error rate in Kentucky capital cases over the last 38 years is not acceptable,” said Public Advocate Ed Monahan.  “The errors are pervasive. They compel a conclusion that our system is broken.  This stunningly high rate of error shows that the system cannot get it right. None of us would put our child on an airplane that returned to the airport over 60% of the time because of defective equipment. Elimination of death as a possible sentence is a prudent policy in light of what we know today.”

The bill is in line with the views of Kentuckians and the policy developments over the last 10 years . “Widespread support for capital punishment no longer exists” in Kentucky. See Gennaro F. Vito, Attitudes Toward the Death Penalty in Kentucky: A Comparison of results – 1989, 1997, 1999, Kentucky Justice and Public Safety Bulletin, Volume 3, No. 1 (September 2001) p 3. Eighteen states do not have the death penalty. Since 2004, the death penalty has been eliminated in 6 states, New York, New Jersey, New Mexico, Illinois, Connecticut, and Maryland. See:  http://deathpenaltyinfo.org/states-and-without-death-penalty

For the last 17 years, Public Defender leaders have sought adequate resources, the implementation of national standards of practice in capital cases, and a moratorium on executions pending reforms. Defenders issued a call for a moratorium in June 1997 based on the experience in Kentucky and the ABA Call for a Moratorium, Resolution No. 107 (February 1997). Defenders have repeatedly renewed the call for a moratorium. See The Advocate, Volume 19, No. 4 (July 1997) p. 9-14; Volume 23, No. 1 (January 2001) pp. 52, 53; The Death Penalty in Kentucky: the System is Broken, KBA Bench and Bar (November 2003) pp. 8-13; DPA Press Release, November 2009; DPA Press Release, December 2011.

Examples of cases that went to trial with death as a possible sentence but resulted in acquittal, reckless homicide or manslaughter verdicts are:

• Joshua Cottrell (Hardin County, 03-CR-00465) – Convicted of Manslaughter,  2^nd Degree
• Larry Osborne (Whitley County, 98-CR-00006-001) - Acquitted on retrial after reversal on appeal.  

Fayette County Capital Prosecutions Where Defendant Was Acquitted of Murder Charge

• C.H. Brown (87-CR-00506-001) - Charged with Murder and Robbery 1; Acquitted of murder, guilty of robbery
• Mark Dixon (95-CR-00577) - Charged with Murder, Robbery 1, and 3 counts of Wanton Endangerment 1;  Acquitted on all charges.
• Carlos Cortez (99-CR-00369-002) - Charged with Murder,  Robbery 1, and Burglary 1; Acquitted on all charges

Fayette County Capital Prosecutions Where Defendant Was Convicted on Lesser Charges

• Earl Cheeks (90-CR-00049-002) - Charged with Murder and Robbery 1; Convicted of Manslaughter, 2^nd Degree; acquitted of robbery
• Myron Wilkerson (98-CR-00631-002) Charged with Murder-Non-Family-Gun; Burglary 1; Robbery 1; Guilty of Man-2 10 yrs., NG Burglary, Guilty Rob-1 20 yrs.

Jefferson County Capital Prosecutions Where Defendant Was Acquitted of Murder Charge:

• Nashawn Stoner (98-CR-02446) - Charged with Murder and two counts of Robbery, 1^st Degree Acquitted on all charges.
• Donnez Porter (97-CR-01951) - Charged with Murder (2 counts), Robbery, 1^st Degree, and Assault, 1^st Degree. Acquitted on all charges. (Motion to exclude death penalty pretrial due to prosecutorial misconduct was denied.)  

Exonerated death row inmate speaks to abolish capital punishment in Kentucky - Kentucky New Era

Since the reinstatement of the death penalty in Kentucky in 1976, there have been 78 people initially sentenced to capital punishment.

And according to two-year study from the American Bar Association’s Kentucky Assessment Team on the Death Penalty, 52 of those people’s convictions were overturned on appeal. That’s a 60 percent error rate, and what the ABA calls a waste of the commonwealth’s resources.

On Monday night, an example of one of those 52 people – whose conviction was not only overturned, but also resulted in his exoneration, though in Illinois – spoke to an attentive crowd at Saints Peter and Paul Catholic Church in Hopkinsville, sponsored by the Kentucky Coalition to Abolish the Death Penalty, to bear witness to his experience being a wrongfully accused on death row and why he has dedicated his life to abolishing the death penalty nationwide

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