‘Coit Kentucky
The Penalty of Death
Ed Monahan
Public Advocate
Commonwealth of Kentucky
June 29, 2011
Today’s presentation
Uoverview of information
U What is the death penalty
U Public opinion: nationally and in Kentucky
UThe criminal justice process for the death penalty from
arrest to finality
UU Roles of defense lawyers and prosecutors
UIs the death penalty an effective policy: historical and
factual context
U What do leaders think
LIABA Assessment process in Kentucky
U inevitable Reforms
How many people have been executed?
In our land
*Since 1608, 20,000 people
In Kentucky
*Before 1976, 424
eAfter 1976, 3 with 2 being volunteers
NAACP Legal Defense Fund's "Death Row USA“
as of April 1, 2010
Number of people on the death row in the United States is
continuing to slowly decline, falling to 3,260. In 2000, there were
3,682 inmates on death row.
Nationally, the racial composition of those on death row is 44%
white, 41% black, and 12% Latino/Latina.
California continues to have the largest death row population
(702), followed by Florida (398) and Texas (333). Pennsylvania
(222) and Alabama (204) complete the list of the states with the
five largest death rows in the country.
Of jurisdictions with more than 10 inmates on death row,
Louisiana, Pennsylvania, and Texas have the largest percentage of
minorities on death row--each has 69%.
is the death penalty?
What
What is the death penalty?
Y Sentence authorized in certain murder
cases by the KY General Assembly
Y Public policy
What do people think about the
death penalty?
Public opinion, nationally, 1936 - 2010
Are you in favor of the death penalty for a person convicted of murder?
1936-2010 trend
f° In favor ! % Opposed
90
79 8o
10 17 46 16
'96 '39 '42 '45 '48 '51 '54 '57 '60 '63 '66 '69 '72 '75 '78 '81 '84 '87 '90 '93 '96 '99 '02 '05 '08
GALLUP
Oct. 7-10, 2010
http://www.gallup.com/poll/144284/Support-Death-Penalty-Cases-Murder.aspx
Americans Split on Death Penalty vs. Life Imprisonment With No Possibility of Parole
Gallup from time to time asks a separate question on the death penalty that provides respondents
with the explicit alternative of "life imprisonment, with absolutely no possibility of parole."
Given this choice, the public this year splits roughly evenly, with 49% saying the death penalty is
the better penalty for murder, while 46% opt for life imprisonment. This split is roughly the same
as in 2006, when this question was last asked. However, prior to 2000, support generally tilted
more strongly toward the death penalty option.
If you could choose between the following two approaches, which do you think is
the better penalty for murder?
WH % The death penalty © % Life imprisonment, with absolutely no possibility of parole
1) % No opinion
61
56
49
46
34 35
29 29
10 u 3 12 u
pee oe 6 44 5 6
10 10 —— —,
1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010
GALLUP
Kentucky Public Opinion
Kentuckians increasingly prefer a sentence other than death
Y Those whsleabtrands WebNS Arche eR is Sats fora
capital murder dropped from 36% to 31%
Y Those favoring a long sentence including life without parole
increased from 46% to 68%
A17-Year Comparison Gennaro F. Vito, Attitudes
70% 67.6% Toward the Death Penalty
60% 53% in Kentucky:
sie note A Comparison of results -
38% 1989, 1997, 1999,
40% 4 Kentucky Justice and Public
30% 4 Safety Bulletin,
20% 4 Volume 3, No. 1 (September
10% 2001) p 3
0%4 : r
1989 1997 1999 2006
@ Death Penaity in the 2008 survey, long ten sentence includes "Lite without
G Long Term Sentence | percie forever (36.2%),” “Life in prison without the possibility
@ Not Sure of parole fo 25 years (10.3%),” “Life in prison without he
possibility of parcie for 20 years (5 .8%),” and “20 to 50
years in prison with no parcie possible (15.5%).”
KY Death Penalty Attitudes 2006
# Not Sure
# 20-50 Years
= LWOP for 20
LWOP for 25
Yrs
# Life W/O
Parole
Death Penalty
Death Other than Death = None of the
Above
QUESTION ASKED BY UNIVERSITY OF KENTUCKY RESEARCH CENTER
Ifa person is convicted in Kentucky of aggravated murder, which of the following
punishments do you personally think is MOST appropriate: The death penalty;
Life in prison without parole forever; Life in prison with the possibility of parole for
25 years: Life in prison without the possibility of parole for 20 years: 20 to 50
years in prison with no parole possible until 85% of the sentence is served.
State and Federal Judicial Executive Capital Review Process
Executive Clemency
Governor
a
9 Step State and Federal Judicial Review process
Federal Court — Post Conviction
9) Certiorari — United States Supreme Court
8) Appeal — 6" Circuit Court of Appeals
7) Habeas — Federal District Court
t
State Court — Post Conviction
6) Certiorari — United States Supreme Court
5) Appeal — Kentucky Supreme Court
4) RCr 11.42 — Circuit Court
tt
State Court — Direct Appeal
3) Certiorari — United States Supreme Court
2) Appeal — Kentucky Supreme Court
1) Trial — Circuit Court
{}
Murder Plus Statutory Aggravating Factor
What is the role of defense
counsel ina
death penalty case?
ABA criminal Justice Standards: Defense Function
Standard 4-1.2 The Function of Defense Counsel
(a) Counsel for the accused is an essential component of the administration of criminal justice. A court properly constituted to hear a criminal
case must be viewed as a tripartite entity consisting of the judge (and jury, where appropriate), counsel for the prosecution, and counsel for the
accused.
(b) The basic duty defense counsel owes to the administration of justice and as an
officer of the court is to serve as the accused's counselor and advocate with courage and
devotion and to render effective, quality representation.
(c) Since the death penalty differs from other criminal penalties in its finality, defense
counsel in a capital case should respond to this difference by making extraordinary
efforts on behalf of the accused. Defense counsel should comply with the ABA
Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases.
(d) Defense counsel should seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the
substantive or procedural law come to defense counsel's attention, he or she should stimulate efforts for remedial action.
(e) Defense counsel, in common with all members of the bar, is subject to standards of conduct stated in statutes, rules, decisions of courts, and
codes, canons, or other standards of professional conduct. Defense counsel has no duty to execute any directive of the accused which does not
comport with law or such standards. Defense counsel is the professional representative of the accused, not the accused's alter ego.
(f) Defense counsel should not intentionally misrepresent matters of fact or law to the court.
(g) Defense counsel should disclose to the tribunal legal authority in the controlling jurisdiction known to defense counsel to be directly adverse
to the position of the accused and not disclosed by the prosecutor.
(h) It is the duty of defense counsel to know and be guided by the standards of professional conduct as defined in codes and canons of the legal
profession applicable in defense counsel's jurisdiction. Once representation has been undertaken, the functions and duties of defense counsel are
the same whether defense counsel is assigned, privately retained, or serving in a legal aid or defender program.
American Bar Association
Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases (2003)
GUIDELINE 1.1—OBJECTIVE AND SCOPE OF GUIDELINES
A. THE OBJECTIVE OF THESE GUIDELINES IS TO SET FORTH A NATIONAL
STANDARD OF PRACTICE FOR THE DEFENSE OF CAPITAL CASES IN
ORDER TO ENSURE HIGH QUALITY LEGAL REPRESENTATION FOR ALL
PERSONS FACING THE POSSIBLE IMPOSITION OR EXECUTION OF A
DEATH SENTENCE BY ANY JURISDICTION.
What is the role of the prosecutor
in a death penalty case?
ABA Criminal Justice Section Standards, Prosecution Function
Standard 3- 1.2 The Function of the Prosecutor
(a) The office of prosecutor is charged with responsibility for prosecutions in its
jurisdiction.
(b) The prosecutor is an administrator of justice, an advocate, and an officer of the
court; the prosecutor must exercise sound discretion in the performance of his or her
functions.
(c) The duty of the prosecutor is to seek justice,
not merely to convict.
(d) It is an important function of the prosecutor to seek to reform and improve the
administration of criminal justice. When inadequacies or injustices in the substantive or
procedural law come to the prosecutor's attention, he or she should stimulate efforts
for remedial action.
(e) It is the duty of the prosecutor to know and be guided by the standards of
professional conduct as defined by applicable professional traditions, ethical codes, and
law in the prosecutor's jurisdiction. The prosecutor should make use of the guidance
afforded by an advisory council of the kind described in standard 4-1.5.
SCR 3.130(3.8) Special responsibilities of a prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for
obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to
negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the
defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the
prosecutor is relieved of this responsibility by a protective order of the tribunal;
(d) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or
present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing
investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(e) refrain, except for statements that are necessary to inform the public of the nature and extent of the
prosecutor's action and that serve a legitimate law enforcement purpose, from making extrajudicial comments
that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable
care to prevent investigators, law enforcement personnel, employees or other persons under the supervision
of the prosecutor in a criminal case from
making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this
Rule.
ABA Opinion Formal Opinion 09-454 (July 8, 2009)
Prosecutor's Ethical Duty to Disclose
Exculpatory Evidence v. Constitutional Duty to Disclose
ABA Standing Committee on Ethics and Professional
Responsibility issued a formal opinion regarding the
scope of a prosecutor's ethical duty under Model Rule
3.8(d) to disclose exculpatory evidence and
information.
Is the capital punishment public
policy effective?
Effective public policy has clear
objectives and when implemented
achieves the designed outcomes
Periods of Death Penalty Developments in United States
1600 - 1790
"All 13 colonies had mandatory hanging for various crimes against state, person, property
1790 - 1860
"Federal bill of rights adopted in 1791 but no significant change; 8" amendment understood to
ban most aggravated forms of the punishment, crucifixion, burning at the stake
"Invention of degrees of murder
"Ending public executions
"Juries given sentencing discretion
"Reducing variety of capital statutes
"Abolition of penalty Michigan, Rhode Island, Wisconsin
1860 - 1910
"Electric chair developed in NY
1910 - 1950
*Penalty abolished in 9 states; reinstituted in all but 2; highest executions rates in 1930s and
1940s; method of execution humanized; role of federal courts expanded
Periods of Death Penalty Developments in United States (cont’d)
1950 - 1970
"Death penalty repealed in Delaware, Oregon, lowa, WVA
"Decline in executions
"Increase in time served under death sentence
"Challenges to constitutionality
1970 - present
"Increasing public support for death penalty
"Politicization of death penalty
"Decline in executive clemency
"Increasing complexity and cost
"Declining importance of deterrence, incapacitation
"Regionalization
"Symbolism
See The Death Penalty in America: Current Controversies, Hugo Adam Bedau,
ed., Oxford University Press, 1997.
Jurisdictions with the
death penalty (36)
Alabama
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Idaho
Indiana
Kansas
Kentucky
Louisiana
Maryland
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
North Carolina
Ohio
Oklahoma
Oregon
Pennsylvania
South Carolina
South Dakota
Tennessee
Texas
U.S. Gov't
U.S. Military
Utah
Virginia
Washington
Wyoming
Jurisdictions without the
death penalty (17)
Alaska
District of Columbia
Hawaii
Illinois
lowa
Maine
Massachusetts
Michigan
Minnesota
New Jersey
New Mexico
New York
North Dakota
Rhode Island
Vermont
West Virginia
Wisconsin
EXECUTIONS SINCE 1976 BY METHOD USED
1082 Lethal Injection
157 Electrocution
11 Gas Chamber
3 Hanging
3 Firing Squad
35 states plus the US government use lethal injection as their primary method.
Some states utilizing lethal injection have other methods available as backups.
Though New Mexico abolished the death penalty in 2009, the act was not
retroactive, leaving two prisoners on death row and its lethal injection protocol
intact
See: Death Penalty Information Center
Race of Defendants Executed Race of Victim in Death Penalty Cases
29
ties Hispanic Over 75% of the
6% Feyienes ci
@ Black - 437 murder victims in
OH; 5 gy cases resulting in an
ispanic - > White
O White - 704 76%
@ Other - 24
execution were white,
even though nationally
only 50% of murder
cti So ra y are
Other Victims generally are
3% white.
See: Death Penalty Information Center
mber of Executions Total: 1256
SuORNIaXT Jo JOqUINN
NUMBER OF EXECUTIONS BY STATE SINCE 1976
Total 2010 2011 Total 2010 2011
Texas 469 «17 5 Illinois 12 0 0
Virginia 108 3 0 Nevada 12 0 0
Oklahoma 96 5 | 2 Utah a 1 0
Florida 69 1 0 Tennessee 6 0 0
Missouri 68 0 1 Maryland 5 0 0
Alabama 53 5 4 Washington 5 1 0
Georgia 49 2 1 Nebraska 3 0 0
Ohio 45 8 4 Pennsylvania 3 0 0
N.Carolina 43 0 0 Kentucky E | 0 0
S.Carolina 43 0 1 Montana 3 0 0
Louisiana 28 1 0 Oregon 2 0 0
Arkansas a7 0 0 Connecticut 1 0 0
Arizona 26 1 2 Idaho 1 0 0
Indiana 20 0 0 New Mexico 1 0 0
Mississippi 15 E 2 Colorado 1 0 0
Delaware 14 0 0 Wyoming 1 0 0
California 13 0 0 South Dakota 1 0) 0
US Gov't 3 0) 0
See: Death Penalty Information Center
Execution By Region*
1200-1031
1000
800-7]
600-4
400-7] 149
20041 TZ
200 4
04 - T -> 3 m7 Le
3 8 8 3 XK
ys > = _
A F 8B BR”
2
*Federal executions are listed in the region in which the crime
was committed.
See: Death Penalty Information Center
' Consistent with previous years. the 2009 FBI Uniform Crime
Report showed that the South had the highest murder rate. The
South accounts for over 80% of executions. The Northeast,
which has less than 1% of all executions, again had the lowest
murder rate.
Murder Rates per 100,000 - 2009
8
6
6
4 45 4.6 rc | 2
3.8
e
0 T T T T
South West Midwest Northeast National
See: Death Penalty Information Center
ear © A 2009 poll commissioned by DPIC found police chiefs ranked
lan the death penalty last among ways to reduce violent crime. The
lity police chiefs also considered the death penalty the least efficient
ith ~—_suse of taxpayers’ money.
What Interferes with Effective Law Enforcement?
Lack of law enforcement resource } TP.
Drug/Alcohol abuse t TP.
Family problems/child abuse ——— 114%
12%
Lack of programs for mentally ————_
Crowded courts 1%
Ineffective prosecution 6%
Too many guns 5%
Gangs 3%
Insufficient use of the death penalty 2%
0% 5% 10% 15% 20%
Percent Ranking Item as One of Top Two or Three
See: Death Penalty Information Center
Death Sentencing
The number of death sentences per year has dropped since 1999
Year 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
Sentences 313 313 315 268 294 277 224 159 166 152 140 139 123 120 119 112 112*
Source: Bureau of Justice Statistics: “Capital Punishment 2009.”
*Projected, based on DPIC’s research.
DEATH ROW INMATES BY STATE: April 1, 2010
California
Florida
Texas
Pennsylvania
Alabama
N. Carolina
Ohio
Arizona
Georgia
Tennessee
Louisiana
Oklahoma
Nevada
702
398
S. Carolina
Mississippi
Virginia
Nebraska
64
61
59
See: Death Penalty Information Center
Connecticut
Utah
Kansas
Washington
US. Military
Maryland
S. Dakota
Colorado
Montana
New Mexico
Wyoming
N. Hampshire
TOTAL
SUIS D VV EINE LALLIGIN? LEYS Le
Race of Death Row Inmates
O Black - 41%
@ Hispanic - 12%
O White - 44%
W@ Other - 3%
3%
See: Death Penalty Information Center
Number Released Since 1973
i)
So
1
i
an
1
_
So
1
0 Death Row Exonerations by State
Total: 138
SOPrPrZzyrooz 24S 5nrz22<=e
RRRSASESSESES SAT 2zSRSRZSE
States Where Inmates Have Been Released
See: Death Penalty Information Center
Since 1973, over 130 people have
been released from death row with
evidence of their mnocence. (Staff
Report, House Judiciary
Subcommittee on Civil &
Constitutional Rights, Oct. 1993, with
updates from DPIC).
From 1973-1999, there was an
average of 3.1 exonerations per
year. From 2000-2007. there has
been an average of 5 exonerations
per year.
Death Penalty and Innocence
¢ Since 1973, over 130 people have been
released from death rows throughout the
country due to evidence of their wrongful
convictions.
Kentucky criminal justice system makes tragic mistakes
Wrongful convictions are a problem in Kentucky as evidenced by the following cases
Michael VonAllmen, 1983, Jefferson county, Rape, Sodomy, Robbery, 35 years
Herman May, 1988, Franklin Co, rape and sodomy, 20 yrs for each offense (served 13 % years)
Ben Kiper, 1999, Butler County, convicted of sexual abuse, 55 years (served 7 years)
Tim Smith, 2000, Kenton County, convicted of first degree sodomy, 20 years (served 7 years)
Jaqulyn Green, 2000, McCreary Co, convicted of complicity to commit murder under EED, 18
yrs (served 7 years)
Sam Plotnick , 2001, Whitley County, convicted of sexual abuse, 18 years (served 7 years)
Jason Girts, 2004, Bullit County, convicted of sex abuse 1st, 5 years (served 3 years)
Lacy Bedingfield, 1995, Fayette Co, convicted of rape, sentenced to 25 yrs (served 14 years)
Edwin A. Chandler, 1993, Jefferson County; convicted of robbery and second degree
manslaughter, 30 years (served 9 years)
William Gregory, 1992, Jefferson county, convicted of rape, attempted rape, and burglary, 70
years, (served 7 years)
44444
KAM KM
<j
Y Larry Osborne was sentenced to death. He was acquitted upon reversal and retrial. See
Osborne v. Commonwealth, 43 S.W.3d 234 (Ky 2001)
The facts of KY death sentences
since December 22, 1976
33 people on Kentucky’s death row
94 death sentences have been returned
3 inmates died before their direct appeal was decided
Kentucky Supreme Court has reversed 38 of 92 cases on their
initial appeal to the Court
50 Kentucky capital cases have exhausted review by the KY
Supreme Court and the Sixth Circuit Court of Appeals
42 have been reversed
2 death sentences have been commuted
1 settled at federal district court level
The facts of KY death sentences
since December 22, 1976
3 persons have been executed
2 persons executed waived some level of appellate
review
Only execution that has not been voluntary is Harold
McQueen, represented by an attorney who was paid
$1,000
6 inmates died prior to completion of their judicial
review
3 died after affirmance on direct appeal by the
Kentucky Supreme Court
The facts of KY death sentences
since December 22, 1976
Error rate
94 death sentences
50 Kentucky capital cases have exhausted review by the
KY Supreme Court and the Sixth Circuit Court of Appeals
42 have been reversed
Number of KY cases where judicial or executive review
has determined that death was not appropriate is 45
Since 1976, 268 death row inmates have been granted
clemency for humanitarian reasons. Humanitarian reasons
include doubts about the defendant's guilt or conclusions
of the governor regarding the death penalty process. Since
1976, there have been five broad grants of clemencies to
death row inmates:
Gov. Pat Quinn in Illinois in 2011 (all inmates)
Gov. Jon Corzine (pictured) in New Jersey in 2007 (all
inmates)
Gov. George Ryan in Illinois in 2003 (all inmates)
Gov. Richard Celeste in Ohio in 1991(8 inmates)
Gov. Toney Anaya in New Mexico in 1986 (all inmates)
Governors are granting clemency
® From 1920-2007, 10 KY Governors have
granted clemency to 37 persons sentenced to
death
© Since 1967, 3 KY Governors granted clemency
to 5 people sentenced to death
Ohio Governor John Kasich
June 8, 2011 clemency grant to Shawn Hawkins
because of doubts about his role in a double murder.
© In May, the Ohio Parole Board unanimously
recommended to spare Hawkins’ life, citing conflicting
statements by the sole eyewitness and possible
involvement of other individuals who had not been fully
investigated.
© Republicans Ken Blackwell, a former Ohio Secretary of
State and 2006 gubernatorial candidate, former Ohio
Attorney General Jim Petro, and state Sen. Bill Seitz all
wrote letters to Gov. John Kasich or to the Parole Board
on behalf of Hawkins.
© Sen. Seitz stated, "[T]here is no reason to end Mr.
Hawkins' life on something so utterly flimsy as mishandled
and inconclusive fingerprints and the testimony of a
witness with every motive to lie. . . ." Hawkins is the first
death row inmate to receive clemency from Governor
Kasich since he took office in January, and the seventh to
be spared since Ohio resumed executions in 1999.
Richard A. Viguerie
The Nation magazine: “one of the creators of the modern conservative movement"
"The fact is, | don't
understand why more
conservatives don't
oppose the death
penalty"
James Fry
former Dallas County Assistant District Attorney
® Changed his mind about
the death penalty after
learning that he
successfully prosecuted
an innocent man for
rape
® Charles Chatman, was
cleared 27 years later
by DNA
“For years | supported capital
punishment, but | have come to
believe that our criminal justice
system is incapable of
adequately distinguishing
between the innocent and
guilty. It is reprehensible and
immoral to gamble with life and
death.”
Dr. Allen Ault
warden at the maximum security prison in Georgia where executions were
carried out
"| have a hard time
believing that using pre-
meditated murder and
violence (executions), is
a way to model
behavior that would
deter somebody else
from doing it."
John Van de Kamp
Former California Attorney General and Los Angeles District Attorney
Called for an end to the
state’s death penalty in
light of the economic
crisis
“With California facing its
most severe fiscal crisis in
recent memory -- with
draconian cuts about to be
imposed from Sacramento
that will affect every resident
of the state -- it would be
crazy not to consider the fact
that it will add as much as $1
billion over the next five
years simply to keep the
death penalty on the books.”
What Is the trend?
...expanded or contracted use of
death penalty?
Why?
Gallup:
The use of the death penalty has
been declining worldwide, with
most of the known executions now
carried out in five countries -- China,
Iran, Iraq, Saudi Arabia, and the
United States.
http://www.gallup.com/poll/144284/Support-Death-Penalty-Cases-Murder.aspx
The trend is away from
the death penalty
Problem areas
front loading
discretion of prosecutor
limited funding
delay
consequences to rest of system
Some examples of cases that went to trial with death as a possible sentence but
resulted in acquittal, reckless homicide or manslaughter verdicts
Y Joshua Cottrell Hardin County - 03-CR-00465 Manslaughter 2nd, 20 yrs. With PFO
¥ Larry Osborne Whitley County, 98-CR-000006-001 acquitted on retrial 2002.
¥C.H. Brown 87-CR-00506-001 Charged with Murder and Robbery 1; Acquitted on murder charges,
guilty on robbery 1
Y 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-Non-Family-Identify-Weapon; Robbery 1-
Residence-Identify-Weapon; Burglary 1; Not Guilty all across
Y Earl Cheeks 90-CR-00049-002 Charged with Murder, Rob-1, and PFO; Convicted of Man-2 and got
20 years; acq. On rob-1, and enhanced sentence for PFO
¥ 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
Y Nashawn Stoner, 98-CR-2446, Charged with Murder-Non-Family-Gun; Robbery 1; Robbery 1.
Acquitted on all charges.
¥ Donnez Porter, 97-CR-1951, Charged with Murder-Non-Family-Gun, 2 counts; Robbery 1; Assault
1. Acquitted on all charges.
Judge Boyce Martin
Wiles v. Bagley
“so fundamentally flawed at its very core that it is beyond
repair.”
"Now in my thirtieth year as a judge on this Court, | have had an
inside view of our system of capital punishment almost since the
death penalty was reintroduced in the wake of Furman v. Georgia.
During that time, judges, lawyers, and elected officials have
expended great time and resources attempting to ensure the
fairness, proportionality, and accuracy that the Constitution
demands of our system. But those efforts have utterly failed.
Capital punishment in this country remains ‘arbitrary, biased, and
so fundamentally flawed at its very core that it is beyond repair.’ At
the same time, the system’s necessary emphasis on competent
representation, sound trial procedure, and searching post-
conviction review has made it exceedingly expensive to maintain.”
ABA Kentucky Assessment Team
Linda Ewald, Co-Chair
University of Louisville
Louis D. Brandeis School of Law
Louisville, KY
Michael J. Z. Mannheimer, Co-Chair
No. Kentucky University
Salmon P. Chase College of Law
Highland Heights, KY
Michael Bowling
Steptoe & Johnson PLLC
Middlesboro, KY
Don Cetrulo
Knox & Cetrulo PLLC
Lexington, KY
Allison Connelly
University of Kentucky
College of Law
Lexington, KY
Martin E. Johnstone
Kentucky Supreme Court (Retired)
Prospect, KY
James Keller
Kentucky Supreme Court (Retired)
Lexington, KY
Frank Hampton Moore, Jr.
Cole & Moore, P.S.C.
Bowling Green, KY
Marcia Milby Ridings
Hamm, Milby & Ridings
London, KY
Gordie Shaw
Commonwealth’s Attorney
14th Judicial Circuit
Versailles, KY
Kentucky Assessment Team on the Death Penalty
The assessment is conducted by a state-based team responsible
for collecting and analyzing various laws, rules, procedures,
standards, and guidelines relating to the administration of capital
punishment in the Commonwealth.
It is the Kentucky Assessment Team’s responsibility to determine
whether the Commonwealth is in compliance with the ABA
Protocols and make any other additional recommendations it feels
are needed to improve the fairness and accuracy of Kentucky’s
death penalty system.
The assessment teams are responsible for collecting and analyzing various laws,
rules, procedures, standards, and guidelines relating to the administration of the
death penalty. In an effort to guide the teams with the assessments, the Project
translated the protocols into an Assessment Guide detailing the data to be
collected and identifying ways to analyze the data.
The Assessment Guide includes sections on the following:
(1) death row demographics, evolution of the state death penalty statute, and the
location of information
(2) collection and preservation of DNA and other types of forensic evidence
(3) law enforcement tools and techniques
(4) crime laboratories and medical examiners
(5) prosecutors
(6) defense services during trial, appeal, and state post-conviction proceedings
(7) direct appeal and the unitary appeal process
(8) state post-conviction relief proceedings and federal habeas corpus
(9) clemency
(10) jury instructions
(11) judicial independence
(12) racial and ethnic minorities
(13) mentally retarded and mentally ill offenders.
Needed reforms
Provide adequate funding of the criminal
justice system, especially public defense
Narrow the applicability of the sentence of
death to limit arbitrary results and to limit
unguided prosecutorial discretion
Provide a reasonable process pretrial to
prevent cases that technically qualify for
capital prosecution but will never result in a
death sentence to have death eliminated as
a possible sentence
Mandate thorough individual voir dire by
counsel
Insure valid and reliable scientific evidence
Define exculpatory evidence and require all
to be turned over regardless of impact on
outcome. Allow proof of actual innocence
when discovered
Mandate full discovery in capital post-
conviction proceedings
Authorize full access to experts through
ex parte proceedings in capital post-
conviction proceedings.
Institute meaningful, reviewable
proportionality review
Mandate improved instructions
Modify the KRS 532.130 et seq. to allow
the court to exclude death for the
borderline retarded in the wake of
Adkins
Create new rule for severance
Create a new rule which allows a single
automatic change of venue in capital
cases
Insure valid and reliable scientific evidence
Y Create an independent forensic lab separate from the
prosecution and law enforcement functions.
Y See Committee on Identifying the Needs of the Forensic Sciences Community, National
Research Council STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH
FORWARD
¥ Recommendation 4: “To improve the scientific bases of forensic
science examinations and to maximize independence from or
autonomy within the law enforcement community, Congress
should authorize and appropriate incentive funds to the
National Institute of Forensic Science (NIFS) for allocation to
state and local jurisdictions for the purpose of removing all
public forensic laboratories and facilities from the administrative
control of law enforcement agencies or prosecutors’ offices.”
Y Create forensic standards for use of scientific evidence in capital
cases;
v Certify state lab
Moore v. Parker
425 F.3d 250 (6t Cir. 2005)
| have been a judge on this Court for more than twenty-five
years. In that time | have seen many death penalty cases
and | have applied the law as instructed by the Supreme
Court and | will continue to do so for as long as | remain on
this Court. This my oath requires. After all these years,
however, only one conclusion is possible: the death
penalty in this country is arbitrary, biased, and so
fundamentally flawed at its very core that it is beyond
repair.
Cost
UKY spends millions yearly on prosecution, defense and
judiciary
U3 executions since 1976 (2 were volunteers).
Usince 1976 Kentucky has spent many, many millions on
capital prosecutions
UKY has 193 murders (10 year average) a year with 60 or so
death eligible
LKY has an expensive and time-consuming process of
prosecuting many death eligible cases but almost all cases
end with a life or life without parole sentence
Funding for the death penalty could be used for
other important social needs
e Anenduring realities of all policy decisions is that
resources are never limitless, and every resource
assigned to one project is a resource which cannot
be assigned to another
¢ Kentucky is currently spending money for a death
penalty system which does not result in many
executions at the same time it does not have
sufficient resources for courts, prosecutors,
defenders, courts and corrections
