Lawyers: Kentucky should suspend executions until flaws fixed

bestep@herald-leader.comDecember 8, 2011 

FRANKFORT — There are serious flaws in Kentucky's administration of the death penalty, increasing the chance an innocent person could be executed, an American Bar Association team said in a study released Wednesday.

The team recommended halting executions in the state until lawmakers and others correct problems cited in the study.

Those problems include a lack of protections against executing seriously mentally ill people; high case loads and low pay for public defenders who represent people accused of capital crimes; no rule to preserve evidence for as long as someone is in prison, meaning they might miss a chance for DNA tests that could exonerate them; and confusion among jurors about their role in deciding whether to recommend a death sentence.

The study found that of the 78 people sentenced to death in Kentucky since 1976, 52 later had that initial sentence overturned because of errors at the trial.

"The underlying concern is that an innocent person not be put to death," said William T. Robinson III, a Northern Kentucky lawyer who is president of the ABA. "When a person's life is at stake, the guarantees of fairness and due process are absolutely paramount."

A poll commissioned by the ABA found that 62 percent of Kentuckians support a temporary halt to executions, the study team announced during a Frankfort news conference.

Support for the moratorium topped 50 percent in every demographic group, including men, women, Democrats, Republicans and urban and rural residents, according to the poll of 405 likely voters contacted between Nov. 30 and Dec. 4.

It would be up to Gov. Steve Beshear to declare a moratorium on death sentences, said Linda Ewald, a University of Louisville law professor who co-chaired the study team. Beshear issued a statement saying his office will carefully review the 400-plus page report.

There are several Death Row inmates in Kentucky who have finished or nearly finished their appeals. However, the state could not carry out an execution now because a judge ruled that its execution process is flawed and barred the state from using it.

The state also doesn't have a key drug needed to execute Death Row inmates, and it's not clear when the drug will become available.

There are 33 men and one woman under a death sentence in Kentucky.

As with the death penalty itself, there were mixed reactions and strong feelings about the study.

Public defenders and the Kentucky Association of Criminal Defense Lawyers backed the call for a death-penalty moratorium and for changes in the state's administration of the ultimate penalty.

Ed Monahan, head of the Kentucky Department of Public Advocacy, and Dan Goyette, head of the public-defender office in Louisville, said there are people on Kentucky's Death Row who are severely mentally ill, that several had lawyers who were ineffective and that serious errors went uncorrected at the trials of some.

There are legitimate questions about the convictions and sentences of some inmates, especially those tried years ago by unqualified lawyers with inadequate resources, Goyette said.

Monahan said the high rate at which death sentences have been overturned shows the system is broken. "This stunningly high rate of error shows that the system cannot get it right," Monahan said in a statement. "None of us would put our child on an airplane that returned to the airport over 60 percent of the time because of defective equipment."

However, Attorney General Jack Conway said in a statement that he disagreed that the state's legal system is broken. Conway said prosecutors carefully consider which people they'll seek a death sentence for. He said trial judges make sure defendants' rights are protected, juries take their job seriously, and appeals courts look over the cases carefully for errors.

"I am reviewing it carefully," he said of the report, "but I do not at first glance believe its analysis warrants a suspension of the death penalty."

Chris Cohron, commonwealth's attorney in Warren County, said prosecutors don't seek death sentences lightly and work hard to handle death cases correctly because they know the outcome will be thoroughly reviewed.

The state has adequate safeguards to make sure an innocent person is not executed, Cohron said.

John Minton, chief justice of the Kentucky Supreme Court, which automatically reviews death sentences, attended the news conference and said he and the other justices will review the study to see if there are changes the court system might need to make.

But Minton said the percentage of death sentences overturned shows appellate courts are doing thorough reviews. "My interpretation of that statistic is that, at least at the appellate level, it demonstrates that the system is working," Minton said.

People who want the death penalty abolished rejected the notion that the changes recommended in the report would end the chance of an innocent person being put to death.

"You cannot take a human system and make sure no mistakes are made," said the Rev. Patrick Delahanty, chairman of the Kentucky Coalition to Abolish the Death Penalty.

Delahanty questioned how the state can justify the significant costs associated with capital punishment when the available sentence of life without parole severely punishes the worst crimes and protects the public.

The ABA says it has become increasingly concerned that the death penalty is not fairly or accurately applied.

The study in Kentucky came as part of a larger project to assess the death penalty in a number of states. Kentucky was the ninth completed.

Ewald said the goal of the study was not to decide whether the death penalty is good or bad, and members of the assessment team did not discuss their personal views. Rather, the team spent two years looking at how well the state measures up on a wide range of recommendations from the ABA that it says are designed to make sure the death-penalty process is fair, impartial and accurate.

The members of the team were Ewald; law professors Michael J.Z. Mannheimer at Northern Kentucky University and Allison Connelly at the University of Kentucky; former state Supreme Court justices Martin Johnstone and James E. Keller; former state Rep. Michael D. Bowling, an attorney in Middlesboro; and attorneys Frank Hampton Moore Jr. of Bowling Green and Marcia Milby Ridings of London.

The team's report noted that Kentucky has taken some positive steps related to the death penalty including creating a statewide public-defender system, allowing Death Row inmates to request DNA tests and becoming the first state to adopt a racial justice act aimed at eliminating racial and ethnic bias in the application of the death penalty.

However, the assessment team said a lot of problems remain. For example, many police agencies do not use the best practices aimed at avoiding false identifications by eyewitnesses and false confessions. Those include videotaping the entire time officers are questioning someone, as opposed to part of the time.

Also, the state bans executing people with an IQ of 70 or below, but that does not square with more modern understanding of mental retardation, and there are other problems that could result in a mentally disabled person being put to death, the report found.

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