Review: 60 percent of state’s death penalty convictions overturned

Local News

December 9, 2011

ABA panel wants it suspended

By Ronnie Ellis CNHI News Service The Richmond Register Fri Dec 09, 2011, 11:00 AM EST

Frankfort — FRANKFORT — A review of Kentucky’s death penalty procedures reveals that 60 percent of the people on death row since 1976 have had their convictions overturned “due to serious constitutional error or misconduct that occurred at trial.”

The review, conducted by the American Bar Association, found enough problems with the way Kentucky administers the death penalty that it calls for suspension of executions until those problems are addressed. It does not call for the abolition of the death penalty.

The review was conducted by a team of law professors, attorneys and two former Kentucky Supreme Court Justices. Among other findings, the report said evidence in criminal cases is not preserved after conviction, which could prevent exoneration of wrongfully convicted innocent persons, and there are no uniform standards for eyewitness identification or interrogations.

Kentucky’s public defenders work under caseloads far in excess of national averages, and they are paid nearly a third less than in surrounding states. At least 10 of the 78 people on death row since 1976 were represented by attorneys who were later disbarred.

“When a person’s life

is at stake, the guarantee of fairness and due process is paramount,” said ABA President William Robinson, a Florence, Ky., attorney. He said his team conducted “an exhaustive review of the laws, procedures and practices with which the death penalty is administered here in Kentucky.”

The report and its call for a suspension of executions were hailed by Ed Monahan, Kentucky’s Public Advocate, and the Kentucky Coalition to Abolish the Death Penalty.

“What is surprising is there continues to be the hope that this broken system of death sentencing can be repaired," said Donald Vish of the Coalition.

Kentucky is the ninth state the ABA has reviewed and it plans to conduct reviews of other states. The ABA has already recommended suspending executions in Alabama, Indiana, Ohio, Georgia and Tennessee, none of which has done so.

Kentucky executions are already suspended pending litigation involving one of the drugs used for lethal injections, the state’s method of execution.

Gov. Steve Beshear said his administration will review the ABA report but noted executions are already halted in Kentucky for the time being.

“We remain under a stay and cannot implement our execution protocol until further direction from the court,” said Beshear in a written statement. “In the meantime, we will carefully and study the 400-plus page report provided by the ABA assessment team.”

Jack Conway, Kentucky’s Attorney General, said he disagreed with the report. Kentucky now has only 40 death row inmates, a number he said “reflects the care with which prosecutors, judges, juries and appeals courts handle these cases.”

Conway said he will review the report carefully, “but I do not at first glance believe its analysis warrants a suspension of the death penalty.”

Supreme Court Chief Justice John D. Minton Jr. interpreted the numbers of overturned convictions a bit differently than Conway. He sees the small death-row population as evidence the system is working “at least at the appellate level.”

The ABA Assessment Team interviewed jurors in death penalty cases and found that many of them didn’t understand the judge’s instructions about having to convict beyond a reasonable doubt or what their sentencing options were.

“That really stood out to me,” said Marcia Milby Ridings, a London civil attorney who served on the assessment team. “The confusion of the jurors, actual jurors in death penalty cases and a large number of them were confused as to what they could have decided and that the standard was beyond a reasonable doubt versus a majority of the evidence. If that many jurors are confused, then we don’t really need to have the death penalty until that is fixed.”

Another team member, Michael Bowling, an attorney and former state

representative, said he is concerned Kentucky lacks adequate protections against wrongfully executing mentally disabled defendants. Kentucky law, Bowling said, bars execution of anyone with an IQ of less than 70, while allowing those with higher IQ to be sentenced to death.

“There just is no science to back that up,” Bowling said. “Nowadays, most psychiatrists and psychologists say IQ isn’t the only factor in mental disability.”

University of Louisville Law Professor Linda Ewald said there were some positive findings by the group. Kentucky has a statewide public defender system and authorizes post-conviction DNA testing.

Ronnie Ellis writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.

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