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August 8, 2010

Innocence claim and execution pace prompting capital questions in Ohio

The top headline on this front page of this Sunday's Columbus Disptach asks "Timeout From Death?" and follows with this subheading "Questions in the case of a man heading toward execution prompt calls for a review of Death Row cases - and a possible moratorium."  Here is the start of a lengthy article:

The former high-school football star sits with shackles around his thick legs and says things you would expect from a man on Death Row.

He is innocent.  Someone else shot and killed those three people.  He has a good alibi.  Local police poisoned witnesses against him.  The photo lineup of suspects was rigged.  There was a phantom witness. "I can't see me being put to death," said Kevin Keith, 46, who is scheduled for execution Sept. 15 and the requisite clemency hearing this week.  "It would be a sad day for me, my family and the justice system."

Although they all might not believe everything Keith says, or that he's innocent, a growing number of people have doubts about his case  including the man who could save him.  "It has circumstances that I find troubling," said Gov. Ted Strickland, who has the power to grant Keith clemency.  "We are looking at that case very seriously."

Cases such as Keith's, coupled with Ohio's pace for a record number of executions this year, have prompted current and former high-level officials to call for a comprehensive review of all Death Row cases  and possibly a moratorium on executions.  The officials include two former prison directors and three prominent Republicans: Ohio Supreme Court Justice Paul E. Pfeifer, former Attorney General Jim Petro and state Sen. David Goodman of New Albany.

Adding to the momentum are five death-sentence commutations by two governors since 2003, passage of a strong DNA law to avoid wrongful convictions, and exonerations of three inmates because of new DNA test results.

Pfeifer, who first urged a Death Row review in a Dispatch story in May, remains the strongest advocate for a review.  His six colleagues on the court, plus Strickland and Attorney General Richard Cordray, have no interest in a study commission, much less a moratorium.  "This isn't about me or anything I might do," Pfeifer said, "although I might have to revisit that if the new governor says, 'I don't want any part of it.'"

Pfeifer was one of three Republican state senators who resurrected Ohio's death-penalty law in 1981 after the old law had been declared unconstitutional.  Pfeifer said he is not suggesting that any of the 160 men and one woman on Death Row are innocent or should be set free, only "whether or not death is the appropriate penalty."

Petro supports the death penalty but favors forming an independent task force to examine Death Row cases and halting executions while that review is being conducted. "We should show restraint, caution and diligence with these cases," Petro said. "DNA has opened a lot of people's eyes with what it can do. When you are talking about death, you can't afford to make even one mistake."

Two former state prison directors, Reginald A. Wilkinson and Terry Collins, who witnessed 34 of 39 executions since 1999, agree that the Death Row cases should be reviewed to see if they are the "worst of the worst," the standard set down when Ohio resumed capital punishment 11 years ago.

Wilkinson, director from 1991 to 2006, takes it a step further.  "I'm of the opinion that we should eliminate capital punishment," he said. "Having been involved with justice agencies around the world, it's been somewhat embarrassing, quite frankly, that nations just as so-called civilized as ours think we're barbaric because we still have capital punishment."

But Strickland doesn't support an additional sweeping review.  "I would caution against setting up sort of an extra-judicial process to replace what is a very understood and rigorous approach to these matters," he told The Dispatch.  "I've got an obligation to carry out the law," the Democratic governor said. "I try to do that extremely carefully. Any death-penalty cases we've dealt with since I've become governor have been given much scrutiny and analysis."

The strongest voices against a fresh look at the death penalty are Attorney General Richard Cordray; former congressman and current Republican candidate for governor John Kasich; former U.S. Sen. Mike DeWine, the GOP candidate for attorney general; Franklin County Prosecutor Ron O'Brien; and John Murphy, head of the Ohio Association of Prosecuting Attorneys.

"I'm confident so far, we haven't had any miscarriages of justice on my watch," Cordray said. "I haven't seen the justification for a moratorium here in Ohio."

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August 8, 2010 at 09:07 AM | Permalink


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Stop all transportation until a commission can study its ghastly eradication of 10's of 1000's of innocent people. The eradication is by butchery by crushing, tearing, and burning body parts. Transportation includes walking, since 20 times more pedestrians are killed than lose their lives by execution. Stop all walking until the commission issues its findings.

The innocence argument is actually unethical. It is pretextual (false, lying use of legal argument). I would report any lawyer for making it to the Disciplinary Counsel. However, that is a waste of time. That regulator is biased in favor of any action that increases lawyer employment.

I apologize in advance for repeating this argument. However, Prof. Berman is relentless in his repeating silly, left wing arguments. Thus the repetitiveness. My good friends here criticize repetition, but only mine, never Prof. Berman's nor that of the Left.

Posted by: Supremacy Claus | Aug 8, 2010 11:16:15 AM

SC: Maybe I'm wasting my time here, but...how is the innocence argument unethical? And how is it that you're comparing deaths from transportation to capital punishment? I know you speak of your disdain silly, left-wing arguments, but I'm afraid I have some bad news for you...

Posted by: Guy | Aug 8, 2010 1:12:41 PM

many persons will be surprised, but the big majority of the coutries in the world can live with transportation and without capital punishment. In USA is the same for 16 jurisdictions

Posted by: claudio giusti, italia | Aug 8, 2010 2:15:45 PM

Libs hold up the death penalty with all sorts of claims, and then, when cases finally get through the system, they whine because too many are being killed. Ridiculous.

Dates need to be set, and executions need to be carried out.

Posted by: federalist | Aug 8, 2010 3:27:54 PM

The argument is, there is an imperfection in this activity, the death penalty. Stop it entirely until the imperfection can be investigated, and found to be insignificant, or remedied.

The problem is that imperfections exist in all human activities, some far more numerous and horrific than mistaken executions, e.g. car crashes. They smash 40,000 people to death compared to the 40 quiet deaths by executions. I oppose both deaths by car accidents and by false conviction for a capital offense. The remedy is always better technology, and research should be promoted into both. But do not stop either because you also stop their benefit.

Lawyers have taken an oath to file claims in good faith. Good faith means, truthful. The false claim is to improve the death penalty administration by having a commission study its faults. The truth is to end capital punishment, which is the opposite of improving the death penalty. If they wanted to prevent false executions, they would be asking for more funding on technology, the sole remedy to false executions. They would also be demanding changes in the Rules of Evidence. Example. No eyewitness testimony without verification by objective evidence. The lawyers have proposed these, but not here. They want abolition, but are not disclosing their intent to the public.

Posted by: Supremacy Claus | Aug 8, 2010 5:27:01 PM

Claudio: The vast majority of countries live without toilets. Start going to the bathroom outdoors to be consistent with your proposal to imitate other countries.

The vast majority of countries have low crime rates because 123D is carried out by village elders. The rate of informal death penalty is unknown to you, but likely applies to almost 100% of repeat violent offenders or career criminals. You and I know about Italy's informal death penalty in self help, by the families of the offended person. Not even I support such an informal approach to the death penalty. But I have yet to see you even mention it. By the way, this method works. Take the rate of crime in a village in Ghana, where people live on $500 a year. Nearly none. Why? Because all the criminals are deceased at a very young age.

Posted by: Supremacy Claus | Aug 8, 2010 5:36:30 PM

Remember the SNL skit where Belushi keeps saying "cheeseburger" no matter what the customer wants? The repetitive calls for "moratorium" no matter what the issue is are starting to sound like Belushi's "cheeseburger."

If any individual case has a genuine question of "whodunit" innocence, then execution should be stayed in that case for as long as it takes to resolve the question. That is no reason to further delay justice in the vast majority of capital cases with no such question.

Posted by: Kent Scheidegger | Aug 8, 2010 6:29:21 PM

I think the reason you get called out, SC, is the inherent ridiculousness of your arguments. You LOVE the death penalty and HATE all attorneys. We *get* it, we REALLY do.

But your comments amount to nothing more substantive than the crazy person on the corner who yells at cars. You add nothing new. Ever.

And the prime example is your lead comment in this thread. Are you really so dense that you find transportation and state sanctioned homicide analogous? Sweet Jesus, it must hurt to be so dumb.

(Side note- I only came back here after reading Prof Berman's post about comments on this blog's feed. But I see very little has changed, at least with respect to the sheer redundancy and stupidity of SC's comments.)

Posted by: Justin | Aug 9, 2010 1:38:37 AM

Justin: Love of lawyers explains all my pain, effort, and time to correct the lawyer. The lawyer will thank me later, when the profession has markedly improved, by ending reliance on supernatural doctrines.

Transportation and the death penalty are closely regulated, state sponsored activities. Indeed, traffic tickets are a branch of the criminal law, and are governed by Rules of Criminal Procedure. You are correct that it is hardly analogous. It is three orders of magnitude (1000 times) more deadly. Given the 100% certainty of these deaths every year, with no exceptions and only small variations, transportation deaths are state sponsored homicides, by butchery methods. The state has decided these random executions of innocent people are worth the benefits of transportation. You are taking transportation for granted. But, someone made that policy determination in the early 20th Century, with the provisos of Traffic Laws, in an attempt to limit the carnage. As with the death penalty, the damage has only been mitigated by technology. People concerned about false executions should be pressuring for better technology, and limiting subjective testimony. But they are not. They are falsely arguing for abolition.

Justin, I understand how my challenging your stealthy indoctrination can be painful. However, does your comment comply with the guidelines proposed by Prof. Berman? Try a fact in rebuttal. That is the most persuasive of all. Painful and hard for the left since the facts abandoned the left 100 years ago. Personal attacks just express frustration in the traverse.

Posted by: Supremacy Claus | Aug 9, 2010 2:27:18 AM

I would like to thank Justin for challenging the analogy. It forced my going down to a second layer of argument, that transportation deaths were not part of nature nor incidental to the development of safety rules. It was settled policy decisions by lawyers in the early 20h Century, with a compromise attempt to mitigate the carnage via traffic laws. These naturally generated massive lawyer jobs. The lawyer got his cake and ate it.

Posted by: Supremacy Claus | Aug 9, 2010 2:47:31 AM

The effect on safety of these lawyer traffic laws is not self-evident. Here, traffic lights and signs were removed. Safety and flow improved.


This support the idea of the law as human experimentation. All should be proven to be safe and effective before wide enactment. In the case of the death penalty, the incapacitation is established, since the deceased have a low recidivism rate.

Posted by: Supremacy Claus | Aug 9, 2010 7:59:10 AM

I have a suggestion for anonymous

"1 lb. beefsteak, with
1 pt. bitter beer
every 6 hours.
1 ten-mile walk every morning.
1 bed at 11 sharp every night.
And don't stuff up your head with things you don't understand."

Posted by: claudio giusti, italia | Aug 9, 2010 10:21:56 AM

Good post, I like it very much! I would like to leave a comment, because it gives more bloggers who participate and the opportunity to perhaps learn from each other.

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