STATUS OF DEATH PENALTY IN KENTUCKY - SEPTEMBER 2013
Executed: More than 20,000 since the 1600s; which included 424 in KY before 1976; and 3 since then, 2
of whom volunteered.
There is a trend away from the use of the death penalty:
¢ 6states in 6 years
¢ Fewer executions now than in the past - from 98 in 99 - 43 in 2012
¢ Fewer death sentences being sought and/or imposed - a 74% decrease in new sentences since
1994
0 Last person on Ky death row was sentenced Mar 19 2010, only other person sentenced
after that has had his conviction and death sentenced vacated and will face a new trial.
* National polling has fluctuated: Gallup reports that in the mid-90s support hit about 80%; that
has now declined to 64%
¢ — State polling: between 1989 and 2006 two trends have evolved:
0 Those who favor death among the various punishments for a capital murder dropped
from 36% to 31%
0. Those favoring a long sentence including life without parole increased from 46% to 68%
More than 140 persons have been release from death row; several have spoken here in Kentucky and
there will be another tour later this summer. Kentucky had to release one inmate after the KY SC
unanimously ordered a new trial and excluded the use of hearsay testimony offered by the prosecutor.
The new jury, unaffected by that spurious testimony, found him not guilty. Larry Osborne
vY Michael VonAllmen, 1983, Jefferson county, Rape, Sodomy, Robbery, 35 years
v¥ Herman May, 1988, Franklin Co, rape and sodomy, 20 yrs for each offense (served 13 % years)
v 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)
v¥ 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)
Y William Gregory, 1992, Jefferson county, convicted of rape, attempted rape, and burglary, 70
years, (served 7 years)
v_Larry Osborne was sentenced to death. He was acquitted upon reversal and retrial. See Osborne
v. Commonwealth, 43 S.W.3d 234 (Ky 2001)
A key to our changing climate was the issuance of a report after a two-year study of capital sentencing in
Kentucky. Several KY legal experts reviewed all they could in relation to a set of protocols established by
the ABA for guidance in the use of the death penalty. The ABA takes no position on its use as a public
policy, but has a keen interest in maintaining a justice system that is credible.
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 are we doing? Our behavior is in question now.
* 33 people on Kentucky’s death row - with 65 victims
* 94 death sentences have been returned , yet only 33 remain on death row because of error
* 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
* | 2death sentences have been commuted - reasons include doubts about the defendant's guilt or
conclusions of the governor regarding the death penalty process
+ 1 settled at federal district court level
The wasteful prosecution of cases as capital when they are not capital cases is a real problem in
Kentucky. For instance, Kentucky had a recent capital case, Raymond Clutter, in Boone County with 5
days of capital voir dire where upon a mistrial due to an opening statement error a prosecutor decided
not to seek the death penalty upon retrial. Judges are beginning to quietly complain about the
imprudent, wasteful prosecution of marginal cases as capital. Some examples of cases that went to trial
with death as a possible sentence but resulted in acquittal, reckless homicide or manslaughter verdicts
are:
e Joshua Cottrell Hardin County - 03-CR-00465 Manslaughter 2nd, 20 yrs. With PFO
e Larry Osborne Whitley County, 98-CR-000006-001 acquitted on retrial 2002.
Fayette county capital acquittals
¢ — C.H. Brown 87-CR-00506-001 Charged with Murder and Robbery 1; Acquitted on murder
charges, guilty on robbery 1
¢ = 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; Convicted on lesser charges
e¢ 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
e 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 Circuit Court acquittals:
. Nashawn Stoner, 98-CR-2446, Charged with Murder-Non-Family-Gun; Robbery 1; Robbery 1.
Acquitted on all charges. (Victims family and Assistant Commonwealth Attorney Joe Gutman wanted to
exclude death pretrial. Commonwealth Attorney David Stengel appeared in Court and refused to allow
the exclusion of capital punishment.)
* Donnez Porter, 97-CR-1951, Charged with Murder-Non-Family-Gun, 2 counts; Robbery 1; Assault
1. Acquitted on all charges. (Motion to exclude death penalty pretrial due to prosecutorial
misconduct was denied.)
Cost
Q_ KY spends millions yearly on prosecution, defense and judiciary
Q 3 executions since 1976 (2 were volunteers).
Q 1 Since 1976 Kentucky has spent many, many millions on capital prosecutions
Q_ KY has 193 murders (10 year average) a year with 60 or so death eligible
KY 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
WILSON:
The following quotes are from the dissenting opinion of Judge Boyce Martin in the case of Wilson v.
Rees. Judge Martin sits on the United States Circuit Court for the 6th District.
Governor Steve Beshear signed a death warrant ordering Wilson's execution, but a stay in Franklin
Circuit Court prevented the execution. The only drug available in Kentucky has since reached its
expiration date and all executions are on hold. The judiciary failed both Wilson and our legal system in
this case because a judge’s unseemly conduct created a risk of bias that undermined the fairness of
Wilson's trial. Brenda Humphrey, Wilson's co-defendant and the woman who identified him as Pooley’s
killer, was having an illicit sexual affair with Judge James Gilliece, a colleague and good friend of the trial
judge during Wilson’s trial...
Perhaps even more egregiously than the judiciary, Wilson’s defense counsel failed him and the
principles of our legal system. From the very beginning of the case, Wilson’s defense was clearly a
charade...
Over my more than thirty years on the bench, Wilson’s trial stands out as one of the worst examples
that I have seen of the unfairness and abysmal lawyering that pervade capital trials. Although | will
continue to apply the law of the Supreme Court as required by my oath, | must reiterate my belief that
“the idea that the death penalty is fairly and rationally imposed in this country is a farce.” Moore v.
Parker, 425 F.3d No. 09-6306 Wilson v. Rees, et al. Page 7 250, 270 (6th Cir. 2005) (Martin, J.,
dissenting). To maintain the legitimacy of our adversarial system of justice, we must be confident that its
two foundational components are sound: a neutral and fair arbiter, and adequate legal representation
for both parties. If either pillar is fractured, as in this case, then we are left with a system that does not
function. Its results cannot be trusted, particularly when a life is at stake. When a person is sentenced to
death in a kangaroo court such as Wilson’s, with an illicit sexual affair taking place between a co-
defendant and a colleague of the trial judge and no semblance of qualified defense counsel, it
irreparably tarnishes our legal system. Until we reform this broken system, we cannot rely on it to
determine life and death.
Ky. court upends death sentence, orders new trial - Carlos Lamont Ordway
A Lexington man on death row will get a new trial on charges he killed two people in a dispute over
drugs after the Kentucky Supreme Court on Thursday concluded there were multiple errors in his case.
The high court's ruling doesn't spare 31-year-old Carlos Lamont Ordway from another possible death
sentence, though. Justice Daniel Venters concluded that there's no reason to rule Ordway ineligible for a
death sentence should he be convicted a second time for the 2007 shooting deaths of 21-year-old
Patrick Lewis and 25-year-old Rodrieques Turner, both of Louisville.
Venters wrote for the court that a juror was improperly seated in the case and that a detective was
improperly allowed to testify about Ordway's behavior and how it didn't appear consistent with a self-
defense claim.
Ordway acknowledged to police that he shot Turner and Lewis, but said the men threatened to kill him
for drugs and he shot them in self-defense in a moving vehicle and caused a crash.
Fayette Circuit Judge Pamela Goodwine restricted some of Ordway's testimony in his own defense,
saying he could not tell jurors what Lewis and Turner allegedly told him as a confrontation over drugs
heated up that night. Goodwine also allowed a police detective to tell jurors how he thought an
innocent person would behave after a self-defense shooting.
Venters wrote for the court that, by allowing the detective to testify about Ordway's post-
shooting behavior, Goodwine allowed the detective to "authoritatively suggest" how an
innocent person would react after a lawful self-defense shooting. By doing so, the detective
suggested that Ordway's behavior didn't match the expected reactions, Venters wrote.
If similar testimony were allowed at all trials in which self-defense were claimed, all of those cases
would develop into a "battle of the experts" debating how guilty people would act in the situation at
hand and whether post-crime conduct pointed to guilt or innocence, Venters wrote.
"The determination of an individual's guilt or innocence must be based upon the evidence of the
particular act in question; it cannot be extrapolated from an opinion, that his behavior after the event
comports with some standardized perception of how the 'typical' suspect behaves," Venters wrote.
Venters also took issue with Goodwine's handling of the jury pool. The judge declined to
dismiss from the jury the sister of a victim's advocate who worked with prosecutors on
Ordway's case. The advocate helps family members of the victims, provides comfort and
functions as a liaison between the victim's family and the prosecutors.
Lack of Data and Proportionality Review.
Finally, there were also many issues regarding use of the death penalty in Kentucky that the Assessment
Team attempted to evaluate, but was unable to obtain sufficient information to do so. The Assessment
Team has encountered a great deal of difficulty in obtaining data on all death-eligible cases in the
Commonwealth, including those in which the death penalty was sought, but not imposed, and those in
which the death penalty could have been sought, but was not. The lack of data collection and reporting
on the overall use of capital punishment renders it impossible for the Commonwealth to guarantee that
such a system is operating fairly, effectively, and efficiently. Specifically,
The Kentucky Supreme Court cannot engage in meaningful proportionality review to determine if a
death sentence is proportionate in comparison to similar cases and offenders. It does not appear that
the relevant data on capital charging practices has been maintained to permit the Court to undertake a
searching proportionality review. A thorough review requires the Court to consider cases in which a
death sentence could have been imposed, but was not, or cases in which a death sentence could have
been sought, but was not. The universe of cases currently examined by the Court during
proportionality review is too limited for it to ensure that Kentucky’s death penalty is
administered in a fully rational, non-arbitrary manner (Chapter 7).
Ensuring Proportionality in Capital Charging and Sentencing (Chapters 5, 7).
The Kentucky Supreme Court should employ a more searching sentencing review in capital cases. This
review should consider not only other death penalty cases but also cases in which the death penalty was
sought but not imposed or could have been sought but was not.
Kentucky should establish a statewide clearinghouse to collect data on all death-eligible cases, including
data on the race of defendants and victims, on the circumstances of the crime, and on all aggravating
and mitigating circumstances. These data should be made available to the Kentucky Supreme Court for
use in conducting meaningful proportionality review and to prosecutors for use in making charging
decisions and setting charging guidelines. Kentucky must designate an entity responsible for the
collection of the data, such as the Administrative Office of the Courts or the Criminal Justice Council.
While Commonwealth law requires the Kentucky Supreme Court to determine, on direct appeal,
“[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant,” the Kentucky Supreme Court limits its
proportionality review to only those cases in which the death penalty actually was imposed. The Court
does not consider cases in which the death penalty was sought but not imposed, or cases in which the
death penalty could have been sought but was not. Without a review mechanism to ensure that similar
sentences are imposed in similar cases on similar defendants, there is no guarantee of internal
consistency within Kentucky’s application of the death penalty.
For example, death sentences have been imposed on defendants for crimes in which a codefendant
received only a term of years. The Kentucky Supreme Court has held that the sentences of co-
defendants are not relevant in determining the validity of a death sentence. Furthermore, the Court’s
existing proportionality review typically offers minimal analysis of the similarities between the facts of
the case at bar and previous cases in which a death sentence was imposed. While the Kentucky Supreme
Court has reviewed the death sentences imposed on seventy-eight defendants per this statutorily-
mandated proportionality review, it never has vacated a death sentence on this ground.
WORST OF THE WORST
@ Robert Drown, Jr.—Double Child Killer, Rapist. Pled Guilty. Life in Prison by plea agreement.
@ Raymond Clutter—Murderer, Rapist, Dismembered His Victim. After a mistrial because of
prosecutor error, the Commonwealth chose not to seek death a jury sentenced him to life in
prison.
@ Michael Abner—Serial Killer. Pled guilty and received a life sentence. Eligible for parole at age
82.
@ Lloyd Hammond—Triple Murderer. Jury sentenced him to life without parole.
@ Raymond Harris—Hitman. Killed for $1000. Sentenced to life without parole for 25 years.
@ Clayton Jackson—Triple Child Killer. Jury sentenced him to life. Prosecutor says justice was
served.
@ Cecil New—Pedophile, Child Killer, Rapist. Sentenced by judge to life in prison without parole
for kidnapping, raping and killing a 4-year old boy.
@ Said Biyad—Quadruple Child Murderer. Killed His Four children. Prosecutor did not seek death
penalty; judge call this the “worst criminal case” he had seen in 18 years on the bench.
Sentenced to life.
@ Miguel Angel Velazquez—Triple Murder with Gun, Baseball Bat and Choking. Plea agreement.
Sentenced to life by the judge.
@ Nicholas Salfi—Murderer. Judge in case stated: “This is one of the most serious crimes this
court has ever seen.” And the prosecutor said: “[O]ne of the most brutal crimes I've ever
seen...” The jury recommended and the judge imposed a 55 year sentence.
@ Robin Maple—Murderer, Kidnapper. At the request of the victim’s family the prosecutor did
not seek death. Serving a life sentence.
@ William Blancet, Sr. - triple murder, first degree robbery, wanton endangerment; allowed to
plead guilty for life without parole, June 2013, Fayette County
@ Samuel Daniels - convicted of the murder of two persons; also two counts of robbery - jury
sentenced to life without parole on the murders and 10 years on the robberies. Sep 10, 2013
Jefferson Co.
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